Maria Avila v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
MARIA AVILA
MEMORANDUM OPINION * BY
v. Record No. 1980-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Gary H. Smith for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Maria Avila (appellant) was convicted in a jury trial of
arson, in violation of Code § 18.2-77. The sole issue on appeal
is whether the evidence was sufficient to sustain her conviction.
Finding the evidence sufficient, we affirm.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
"The burden is upon the Commonwealth, however, to prove beyond a
reasonable doubt that [the defendant] was the perpetrator of the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
crimes." Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d
662, 668 (1991). "Additionally, circumstantial evidence is as
competent, and entitled to the same weight, as direct testimony
if such evidence is sufficiently convincing." Id. It is true
that, in a case based upon circumstantial evidence, the
Commonwealth must exclude every reasonable hypothesis of
innocence. See Cantrell v. Commonwealth, 7 Va. App. 269, 289,
373 S.E.2d 328, 338 (1988). "However, '[w]hether the
Commonwealth relies upon either direct or circumstantial
evidence, it is not required to disprove every remote
possibility of innocence, but is, instead, required only to
establish guilt of the accused to the exclusion of a reasonable
doubt.'" Id. (quoting Bridgeman v. Commonwealth, 3 Va. App.
523, 526-27, 351 S.E.2d 598, 600 (1986)).
In the present case, the evidence, viewed in the
appropriate light, established that appellant was separated from
her husband, Isreal Avila (Avila), and had lived in the
condominium purchased by Avila before the marriage. In July
1998, a court granted Avila possession of the condominium and
appellant moved from there in August 1998.
At approximately 7:30 p.m. on September 8, 1998, Percy and
Angelite Covington saw appellant leave an assigned parking space
at the condominium. Approximately forty-five minutes later, the
Covingtons saw smoke and noticed that the door to Avila's
condominium was black. Chief Fire Marshall Sean Kelley (Kelley)
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arrived at the scene at approximately 8:30 p.m. Following an
investigation, Kelley determined that nine separate fires had
been deliberately set and that the smoke detector had been
tampered with so that it did not work. A fire was set in
Avila's bed, couch, dining table, computer and other household
items. A fire was not set in a bedroom that contained the toys
belonging to the child of appellant and Avila. Testimony given
by Avila's supervisors and employment records established that
Avila was at work at the time of the fires.
In the course of his investigation, Kelley was unable to
locate appellant for questioning and, thus, he conducted a
surveillance of her son. A few days after the fire, Kelley saw
a third party pick up appellant's son from school and take him
to a park to meet appellant. Kelley then followed appellant to
her apartment. When Kelley went to appellant's apartment, her
first words were, "How did you find me?" Appellant denied that
she set the fires and stated that she was attending church,
approximately three miles from the condominium, at the time of
the incident.
At trial, the Covingtons testified that they arrived at the
condominium on September 8, 1998 at approximately 7:30 p.m. and
called for assistance at approximately 8:30 p.m. However, on
cross-examination the two witnesses admitted to making a verbal
statement on the night of the fire that they observed appellant
leave the complex at approximately 8:30 p.m. Based on that
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first statement given by the Covingtons and subsequent written
statements, Fire Marshall Kelley originally estimated that the
fires were set around 8:20 p.m. However, he testified that,
consistent with the Covingtons' trial testimony, the fires could
have been started earlier. In appellant's defense, several
members from her church testified that on the night of the fire
she was present at church before 7:30 p.m. and throughout the
evening. At the conclusion of the evidence, the jury convicted
appellant of arson.
II.
On appeal, appellant contends that the Covingtons gave
inconsistent statements concerning the time they saw her on the
day of the fires and that the testimony of Fire Marshall Kelley
was inconsistent. Given these inconsistencies, appellant argues
that the evidence was insufficient to establish that she was the
perpetrator of the crime.
"In a prosecution for arson, the Commonwealth must prove
that 'the fire was of incendiary origin and that the accused was
a guilty agent in the burning.'" Hickson v. Commonwealth, 258
Va. 383, 387, 520 S.E.2d 643, 645 (1999) (quoting Augustine v.
Commonwealth, 226 Va. 120, 123, 306 S.E.2d 886, 888 (1983)).
Like other crimes, arson may be proved by circumstantial
evidence "[w]here all the circumstances of time, place, motive,
means, opportunity and conduct concur in pointing out the
accused as the perpetrator of the crime." Schlimme v.
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Commonwealth, 16 Va. App. 15, 18, 427 S.E.2d 431, 433-34 (1993)
(citations omitted). Thus, "we consider the evidence as a whole
in deciding whether it is sufficient to support the jury's
findings that [the defendant] was the perpetrator of the
crimes." Chichester v. Commonwealth, 248 Va. 311, 329, 448
S.E.2d 638, 650 (1994).
In the instant case, the evidence was sufficient to
establish that appellant was the perpetrator of the crime.
Appellant and Avila were involved in divorce proceedings, and
Avila was forced to petition the court for relief when appellant
refused to leave the condominium. Both parties changed the
locks to the residence without notice to the other, and the
evidence demonstrated an animosity between the two individuals.
Fire Marshall Kelley testified that the manner in which the fire
was set (i.e., the burning of the marital bed and husband's
clothes) was a "classic" revenge-type fire, and he had no doubt
the fire was of incendiary origin.
In addition to motive, the circumstantial evidence
established time, means and opportunity, from which the jury
could infer that appellant was the perpetrator of the crime.
There was no sign of a forced entry and, although she returned
one set of keys to Avila, appellant was the last one to change
the locks. Additionally, the testimony of the Covingtons placed
appellant at the crime scene on the evening of the fires and
appellant's church was within a five-minute drive. Put simply,
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the jury heard the testimony regarding the time of the fire,
observed the demeanor of all the witnesses, and was free to
accept or reject the evidence presented. "The credibility of
the witnesses and the weight accorded the evidence are matters
solely for the fact finder who has the opportunity to see and
hear that evidence as it is presented." Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
"In its role of judging witness credibility, the fact finder is
entitled to disbelieve the self-serving testimony of the accused
and to conclude that the accused is lying to conceal his guilt."
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant was guilty of arson.
Accordingly, appellant's conviction is affirmed.
Affirmed.
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