Pijor v. Commonwealth , 294 Va. 502 ( 2017 )

PRESENT: All the Justices
DAVID STANLEY JAMES PIJOR
OPINION BY
v. Record No. 161346 JUSTICE CLEO E. POWELL
December 28, 2017
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
David Stanley James Pijor (“Pijor”) was found guilty of perjury, in violation of Code
§ 18.2-434, in the Circuit Court of Fairfax County (“trial court”). The perjury conviction
stemmed from testimony Pijor gave during a larceny trial in which he was acquitted. On appeal,
Pijor argues that the Commonwealth was collaterally estopped from indicting him for perjury
due to his previous acquittal and that the evidence was insufficient to prove he committed
perjury.
I. BACKGROUND
On February 4, 2014, Pijor was tried for larceny of an animal and unlawfully entering
another’s property. The charges arose from the disappearance of a dog, Ben, that belonged to
Pijor’s ex-girlfriend, Kristy Gooch (“Kristy”). The Commonwealth’s theory during the larceny
trial was that Pijor took Ben after entering the home where Kristy and her parents resided,
uninvited. Patti Gooch (“Patti”), Kristy’s mother, testified she was home alone with Ben on the
morning of September 6, 2013, when Pijor began ringing the front doorbell, calling out for
Kristy or Patti to speak with him, and calling the house telephone. Patti did not respond to Pijor
because she was scared and, instead, called the police from her upstairs bedroom while Ben
barked at the front door. After Pijor fell silent, Patti opened her bedroom door and found Pijor
with Ben beside him. Patti told Pijor to leave and he responded he was trying to check on Kristy.
As Pijor proceeded back downstairs, Patti retreated to her bedroom and closed the door. Patti
opened the door “seconds” later after she realized Ben was not with her and ran downstairs,
where she did not see Pijor or Ben. Patti proceeded outside but saw no sign of Pijor or Ben.
In the larceny trial, Kristy testified she and Pijor had a troubled relationship that she had
been trying to end for several years and that Pijor had previously threatened to take away
everything she cared about if she ended their relationship. Kristy explained that, approximately
two days before Ben’s disappearance, she had stopped responding to Pijor’s attempts to contact
her. Kristy claimed that Ben was very well behaved and never ran away despite being
unrestrained frequently. Ben also wore a collar and tags that bore Kristy’s name, telephone
number, and home address.
Pijor testified in his own defense and acknowledged using a key he knew was hidden
under a rock to let himself into the Goochs’ home. Pijor explained he was concerned about
Kristy’s welfare and that Ben followed him as he left the house after his encounter with Patti.
Once outside, Ben tried to follow Pijor, and Pijor commanded Ben to stay in the Goochs’
backyard, which he did. Pijor claimed that this was the last time he saw Ben. When asked, “At
any point in time have you received information on where Ben might be?” Pijor responded, “No,
I haven’t”. When asked, “[H]ave you seen the dog since September the 6th?” Pijor said, “No”.
Pijor claimed Ben would chase people, animals, and dogs unless told not to and that he had run
away at least once. Pijor noted he tried to find Ben and denied threatening Kristy.
Pijor’s father, David Pijor (“Pijor, Sr.”), testified that Pijor lived with him “for periods of
time” after Ben’s disappearance but that he had not seen the dog. Pijor, Sr. recounted that his
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son left on a trip to Ocean City, Maryland the day Ben disappeared and that Pijor had tried to
find Ben. The jury acquitted Pijor of both charges.
Post-trial, it was discovered Pijor had possession of Ben, and he was charged with perjury
stemming from his trial testimony that he had no information regarding Ben’s whereabouts after
September 6, 2013 and that he had not seen the dog since that date. 1 Pijor moved to dismiss this
charge and argued that principles of collateral estoppel prevented the Commonwealth from
proving he perjured himself because it would require relitigating whether he stole Ben. The trial
court disagreed and concluded that, although the Commonwealth could not present evidence
Pijor stole Ben, it could prove that he lied about knowing where Ben was after the dog went
missing.
From the day Ben disappeared, Kristy did not see either him or Pijor, except for seeing
Pijor at the larceny trial. At Pijor’s perjury trial, Kristy testified regarding a series of events that
began five days after the larceny trial. On February 9, 2014, five days after Pijor’s acquittal in
the larceny trial, she saw a man in a hooded sweatshirt (i.e., a “hoodie”) with the hood pulled up
over his head, 2 walking a dog resembling Ben near her home. The dog carried an orange Frisbee
1
The Commonwealth also indicted Pijor for the larceny of Ben on or about April 29,
2014, but the circuit court dismissed that indictment as violative of double jeopardy. See
Commonwealth v. Pijor, Record No. 0043-15-4, 2015 Va. App. LEXIS 178, at *3 (May 26,
2015) (unpublished).
2
A “hoodie” or “hoody” is a shirt or sweatshirt featuring a hood that can be pulled up
over the head, or worn with the hood down and loosely folded about the neck. See, e.g., Brown v.
Grounds, No. CV 12-9131 DSF (AS), 2015 U.S. Dist. LEXIS 54123, at *24 (C.D. Cal. Feb. 12,
2015) (describing a “hoodie” as a sweatshirt with a hood); United States v. Midyett, No. 07-CR-
874 (KAM), 2009 U.S. Dist. LEXIS 8865, at *9 (E.D.N.Y. Feb. 6, 2009) (same); State v. Taylor,
382 S.W.3d 251, 252 (Mo. Ct. App. 2012) (describing a “hoodie” as “a . . . hooded zip-up or
pullover shirt”); United States v. Garvin, 548 Fed. Appx. 757, 758 (3d Cir. 2013) (describing a
“hoody” as a hooded sweatshirt).
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in its mouth. On March 1, 2014, Kristy saw the man again, wearing what appeared to be the
same hoodie with the hood pulled up over his head and walking the same dog carrying the same
orange Frisbee near her home. Later that evening, an orange Frisbee struck the Goochs’ front
door.
On March 8, 2014, Kristy saw the man in a hoodie with the hood pulled up over his head
and walking with a dog carrying the orange Frisbee again while she was driving with her
boyfriend, Tam Nguyen. Nguyen pulled over, and Kristy identified the pair as Pijor and Ben.
Kristy testified that when she called Ben’s name, “the dog immediately dropped the Frisbee and
tried to pull towards me.” Nguyen tried to follow Pijor but he ran with Ben in tow. Nguyen
testified and confirmed he and Kristy saw Pijor walking Ben on March 8.
Detective Jacquelynn Smith testified she began tracking Pijor’s movements by GPS on
March 10, 2014 due to allegations that he was stalking Kristy. She arrested Pijor on April 29,
2014, with Ben in his car. Pijor told Detective Smith that he had found the dog but would not
tell her when he found Ben. In the back seat of Pijor’s car was a dog bowl, dog food, a leash,
and a blanket covered in dog hair.
Pijor, Sr. testified that Pijor lived with him between September 6, 2013 and February 4,
2014 and that he saw his son almost every day during that period. Pijor, Sr.’s house was four to
six miles from where Kristy and Nguyen saw Pijor and Ben on March 8, 2014. Pijor Sr. denied
seeing Pijor with Ben or noticing any evidence that Pijor had Ben. Specifically, Pijor, Sr.
testified that he saw the interior of Pijor’s car regularly and that he saw no indication Pijor was
transporting Ben in the vehicle. Pijor, Sr. acknowledged that Pijor occasionally visited a friend
in Ocean City. Pijor offered into evidence a portion of the transcript from his first trial, which
recounted his explanation of how he looked for Ben after he went missing.
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The trial court found Pijor guilty of perjury. Pijor appealed his conviction to the Court of
Appeals. The Court of Appeals denied Pijor’s appeal, concluding in an unpublished opinion that
collateral estoppel did not bar his prosecution and that the evidence supported his conviction.
Pijor v. Commonwealth, Record No. 2065-15-4, slip op. at 2 (June 29, 2016). The Court of
Appeals further held that the circumstantial evidence was competent and not inherently
incredible to prove that Pijor was guilty of perjury. Id. at 3-5. This appeal followed.
II. ANALYSIS
A. Collateral Estoppel
Collateral estoppel is a doctrine of fact preclusion that is “embodied in” the Fifth
Amendment “protection against double jeopardy.” Simon v. Commonwealth, 220 Va. 412, 415,
258 S.E.2d 567, 569 (1979). “[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.” Ashe v. Swenson, 397 U.S. 436, 443 (1970).
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
rendered in the prior proceeding; and (4) the prior proceeding must
have resulted in a valid, final judgment against the party to whom
the doctrine is sought to be applied.
Whitley v. Commonwealth, 260 Va. 482, 489, 538 S.E.2d 296, 299 (2000).
Where a previous judgment of acquittal was based upon a general
verdict, as is usually the case, this [realistic and rational] approach
requires a court to “examine the record of a prior proceeding,
taking into account the pleadings, evidence, charge, and other
relevant matter.”
Ashe, 397 U.S. at 444. “Collateral estoppel . . . 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
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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 defendant bears the burden of proving that the precise issue of fact sought to be
precluded was raised and determined in the prior action.” Commonwealth v. Leonard, 294 Va.
__, __, 805 S.E.2d 245, 249 (2017) (citing Rhodes v. Commonwealth, 223 Va. 743, 749, 292
S.E.2d 373, 376 (1982)). In Rhodes, the defendant was tried and acquitted of possession of
phencyclidine (“PCP”) based on laced cigarettes found in his car. In his subsequent trial for
manufacture of PCP, Rhodes argued that collateral estoppel precluded the Commonwealth from
introducing evidence of the presence of the PCP laced cigarettes in his car. His argument was
grounded on the fact that the same evidence had been introduced in the possession trial of which
he had been acquitted. We held that because Rhodes was unable to prove that “the precise issue
of fact,” i.e., the presence of PCP in his vehicle, was determined in his favor, that issue of fact
remained “unfettered by the doctrine of collateral estoppel.” Rhodes, 223 Va. at 749-50, 292
S.E.2d at 377.
Here, Pijor was first charged with larceny of the dog. At common law, larceny is defined
as “the wrongful or fraudulent taking of another’s property without his permission and with the
intent to deprive the owner of that property permanently.” Tarpley v. Commonwealth, 261 Va.
251, 256, 542 S.E.2d 761, 763-64 (2001). The jury acquitted Pijor of larceny of the dog. In his
defense, Pijor argued that the dog tried to follow him when he left, but he told the dog to stay in
the yard. Pijor claimed that that was the last time he saw the dog and that his “purpose was not
to steal the dog or steal anything.” When asked, “At any point in time have you received
information on where Ben might be?” Pijor responded, “No, I haven’t.” Defense counsel next
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asked, “And have you seen the dog since September the 6th?” Pijor responded, “No.” The jury
acquitted Pijor of larceny of the dog.
To convict someone of perjury, Code § 18.2-434 provides, in pertinent part, “If any
person to whom an oath is lawfully administered on any occasion willfully swears falsely on
such occasion touching any material matter or thing . . . he is guilty of perjury, punishable as a
Class 5 felony.” The evidence in the perjury trial showed that Ben was found in Pijor’s
possession. Kristy saw a man wearing a hoodie near her home, with the hood pulled up over his
head, and walking with a dog resembling Ben carrying an orange Frisbee in its mouth on
February 9, 2014, five days after Pijor’s acquittal for larceny of the dog. She saw the same man
in the same hoodie, with the hood pulled up over his head, with the dog and orange Frisbee again
on March 1, 2014 near her home. On March 8, 2014, she again saw the man in a hoodie, with
the hood pulled up over his head, and the dog with the orange Frisbee. She recognized that man
as Pijor and she called the dog’s name and he turned toward her. Pijor was arrested on April 29,
2014 with the dog in his car. Pijor told his father that he had “found Ben sometime, you know, a
little, sometime before” he was confronted by the police on April 29, 2014.
Pijor argues that the Commonwealth was estopped from convicting him of perjury
because the ultimate issue in both the larceny and perjury cases was whether he stole the dog.
We disagree. In the larceny trial, it was alleged that on September 6, 2013, Pijor stole a dog
belonging to Kristy. The jury in the larceny trial was instructed:
David Pijor is charged with the crime of larceny of a dog. The
Commonwealth must prove beyond a reasonable doubt each of the
following elements of that crime.
1) that David Pijor took and carried away the dog and,
2) that the animal belonged to Kristy Gooch and,
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3) that the taking was against the will and without the consent of
the owner and,
4) that the taking was with the intent to steal.
If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt each of the above elements of the crime
as charged then you shall find David Pijor guilty but you shall not
fix the punishment until your verdict has been returned and further
evidence has been heard by you. If you find that the
Commonwealth has failed to prove beyond a reasonable doubt any
one or more of the elements of the crime then you shall find David
Pijor not guilty.
The ultimate issue of fact in the larceny trial was whether on September 6, 2013, Pijor
took the dog with the intent to steal him. By entry of a general verdict, Pijor was acquitted of
that offense.
This general verdict requires us to examine the record and consider whether a rational
jury could have grounded its verdict upon an issue other than that which Pijor seeks to foreclose
from consideration here – that is, that Pijor had not seen the dog nor had he received information
about the dog’s whereabouts since September 6, 2013. See Ashe, 397 U.S. at 444. There is no
indication in the record that the jury based its verdict on Pijor’s statements that he had not seen
nor received any information about the dog. Even if we accept Pijor’s argument that the jury
found him credible with respect to whether he took the dog, that finding would not support his
argument that the jury also decided the precise issue he seeks to preclude. Indeed, having
decided the first issue, the jury would have no need to decide the latter issue.
Therefore, because Pijor failed to prove that the precise issue of fact he seeks to preclude
was determined in the larceny trial, the trial court and the Court of Appeals did not err in finding
the Commonwealth was not collaterally estopped from bringing the indictment for perjury
against Pijor. See Leonard, 294 Va. at __, 805 S.E.2d at 249 (“Collateral estoppel, as applied in
criminal proceedings, becomes applicable only when the defendant’s prior acquittal necessarily
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resolved a factual issue that the Commonwealth seeks to litigate again in a subsequent
proceeding.”) (collecting cases).
B. Sufficiency of the Evidence
Pijor next argues that the circumstantial evidence presented by the Commonwealth was
insufficient to prove that he committed perjury in his larceny trial. We disagree.
When considering on appeal whether the evidence was sufficient to support a criminal
conviction, “we review factfinding with the highest degree of appellate deference.” Bowman v.
Commonwealth, 290 Va. 492, 496, 777 S.E.2d 851, 854 (2015). The Court “does not ‘ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”
Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in
original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “‘Rather, the relevant
question is,’ upon review of the evidence in the light most favorable to the prosecution, ‘whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Dietz v. Commonwealth, 294 Va. 123, 132, 804 S.E.2d 309, 314 (2017)
(quoting Bowman, 290 Va. at 496, 777 S.E.2d at 854) (emphasis in original).
The judgment of the trial court is presumed correct and will not be disturbed unless it is
“plainly wrong or without evidence to support it.” Code § 8.01-680. We have repeatedly held
that “[t]hese principles apply ‘with equal force’ to bench trials no differently than to jury trials.”
Vasquez v. Commonwealth, 291 Va. 232, 249, 781 S.E.2d 920, 930 (2016).
“[C]ircumstantial evidence is competent and is entitled to as much weight as direct
evidence provided that the circumstantial evidence is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.” Dowden v. Commonwealth, 260 Va. 459, 468, 536
S.E.2d 437, 441 (2000). “And the hypotheses which must be reasonably excluded are those
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which flow from the evidence itself, and not from the imagination of defendant’s counsel.”
Turner v. Commonwealth, 218 Va. 141, 148, 235 S.E.2d 357, 361 (1977). “Indeed, in some
cases circumstantial evidence may be the only type of evidence which can possibly be
produced.” Stamper v. Commonwealth, 220 Va. 260, 272, 257 S.E.2d 808, 817 (1979). “While
no single piece of evidence may be sufficient, the combined force of many concurrent and
related circumstances . . . may lead a reasonable mind irresistibly to a conclusion.” Muhammad
v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 32 (2005).
A circumstantial fact is admitted on the basis of an inference when
the inference is a probable explanation of another fact and a more
probable and natural one than other explanations, if any. Evidence
is seldom sufficient to establish any fact as demonstrated and
beyond all doubt.
Toler v. Commonwealth, 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949).
In order to sustain a perjury conviction under [Code § 18.2-434],
the Commonwealth ha[s] the burden of proving: (1) that an oath
was lawfully administered; (2) that the defendant wilfully swore
falsely; and (3) that the facts to which he falsely swore were
material to a proper matter of inquiry.
Mendez v. Commonwealth, 220 Va. 97, 102, 255 S.E.2d 533, 535 (1979).
During Pijor’s larceny trial, when asked by his counsel, “At any point in time have you
received information on where Ben might be?” Pijor responded, “No, I haven’t.” Counsel next
asked, “And have you seen the dog since September the 6th?” Pijor responded, “No.” The
evidence in the perjury trial was sufficient for the trial court to find beyond a reasonable doubt
that as of February 4, 2014, Pijor had seen Ben since September 6, 2013 or that he had
information on where the dog might be located. The evidence showed that on February 9, 2014,
five days after Pijor’s acquittal for larceny of the dog, Kristy saw a man wearing a hoodie with
the hood pulled up over his head, walking near her home with a dog that resembled Ben who was
carrying an orange Frisbee in its mouth. She saw the same man, wearing a hoodie with the hood
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pulled up over his head, walking the same dog with an orange Frisbee again on March 1, 2014.
Once again, the man and the dog were seen near her home. Later that evening, an orange Frisbee
struck the Goochs’ front door.
On March 8, 2014, she again saw the “same man in the same hoodie” with the hood
pulled up over his head, walking with the same dog carrying an orange Frisbee on the sidewalk
of Route 29 near her home. This time, Kristy called “Ben” and “the dog immediately dropped
the Frisbee and tried to pull towards [her].” Kristy testified that “Mr. Pijor was the man in the
hoodie. I definitely saw his face.”
Pijor was tracked via GPS beginning on March 10, 2014, due to his alleged stalking of
Kristy. He was arrested on April 29, 2014 with Ben in his car. When asked by Detective Smith
about his possession of the dog, Pijor said he found him. When asked when he found the dog,
Pijor gave no response. Pijor told his father that he had “found Ben sometime, you know, a little,
sometime before” he was confronted by the police on April 29.
During argument on the motion to strike and during closing arguments, the trial court
referenced the following facts:
We know that from the evidence, that this dog Ben is missing on
February the 4th. We also know that they had a bad breakup, and
that according to Ms. Gooch, he was very distraught, . . . very
irrational, would lash out, very stressful situation. . . . So being in
possession of her dog . . . could arguably be consistent with a
motive to hurt Ms. Gooch. . . . Then you have the fact that on
February 9th, which is five days after he testified, she observes a
guy with a hoodie with a dog that, based on the gait, she thought
might be her dog.
The trial court also asked the Commonwealth,
What inference can I draw from the fact that he did not answer the
question of when he found the dog?
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[The Commonwealth]: I think Your Honor can draw the inference
that he did not want to answer that question potentially because it
would get him in trouble.
The evidence was sufficient for the trial court to find that Pijor was lying when he
testified during the larceny trial that he had not received any information about Ben, nor had he
seen Ben. Kristy had been trying to break away from Pijor from the time they broke up from a
lengthy romantic relationship in 2011 until two days before Ben disappeared. Kristy testified
that after their romantic relationship ended that “[i]t was very tense and stressful. I was trying to
pull away and was having trouble breaking away from that relationship. . . . [I]f I wouldn’t
return phone calls I would get angry texts and calls [from Pijor].” On September 4, 2013, Kristy
discontinued contact with Pijor. On September 6, 2013, Ben disappeared. On February 4, 2014,
Pijor testified that he had not seen Ben since September 6, 2013, nor had he received any
information regarding Ben’s whereabouts. On February 9, 2014, Kristy saw Pijor with Ben.
The evidence was sufficient for the trial court to conclude that indeed it was Pijor who
Kristy saw with Ben on February 9. Further, the series of encounters supported the trial court’s
finding that all of the sightings were of Pijor and indicated an attempt on Pijor’s part to taunt
Kristy as furtherance of his desire to hurt her.
Finally, the evidence was sufficient for the trial court to conclude that Pijor either had
seen the dog or had information as to where it was on February 4, 2014, when he testified to the
contrary. It strains credulity that a dog with a collar and identification tag containing Kristy’s
contact information would have been missing from September 6, 2013 until February 9, 2014,
not found by anyone and returned to its owner, and then suddenly and inexplicably be found by
Pijor. Further, because the tags contained Kristy’s contact information, the evidence was
sufficient for the trial court to conclude that if someone else, other than Pijor, had come into
possession of Ben, that they would have contacted Kristy. The fact that no one did prior to Pijor
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being seen with Ben, supports the conclusion that Pijor knew where the dog was and/or had
information on Ben’s whereabouts at the time of his larceny trial. The trial court also could have
taken into consideration that Pijor knew the dog belonged to Kristy, yet he made no effort
between February 9 (the point beyond which there was direct evidence that he had Ben) and
April 29 to return the dog to Kristy. Moreover, when questioned by the detective, after being
found in possession of Ben, Pijor told her that he had found Ben, but would not tell her when he
found Ben. It was well within the bounds of the evidence for the trial court to conclude beyond a
reasonable doubt that Pijor did not fortuitously come into possession of the dog on February 9,
but rather knew where the dog was five days before when he testified that he had no information
on where the dog was and that he had not seen the dog.
“Since the fact finder had the opportunity of hearing and observing the witnesses, its
findings are entitled to great weight. The evidence and all just and reasonable inferences
therefrom must be viewed on appeal in the light most favorable to the [Commonwealth].”
Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982). In that light, a rational
fact finder could have found all of the necessary elements for the crime of perjury established
beyond a reasonable doubt. Accordingly, we find the evidence was sufficient to prove Pijor
committed perjury in violation of Code § 18.2-434.
C. CONCLUSION
For the foregoing reasons, we find no error in the judgment of the Court of Appeals and
we will affirm Pijor’s conviction for perjury in violation of Code § 18.2-434.
Affirmed.
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