Robert Wayne Hickson, Jr. v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
ROBERT WAYNE HICKSON, JR.
MEMORANDUM OPINION * BY
v. Record No. 2482-97-3 JUDGE DONALD W. LEMONS
NOVEMBER 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Dutton Olinger (Attorneys & Counselors at Law
of America, P.C., on briefs), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Robert Wayne Hickson, Jr. was convicted in a bench trial of
arson. On appeal, he contends the evidence was insufficient to
sustain his conviction. We disagree and affirm the conviction.
BACKGROUND
On the morning of August 10, 1995, Michelle Nicole Price
observed a white car stop in front of a trailer home owned by
Michael Eastridge. Eastridge's trailer home was located next to
Price's house. Price saw a man exit the car and overheard
yelling and what appeared to be rocks hitting a sign. She saw
the man return to the car, in which a passenger remained seated,
and drive away.
That evening, Robert Wayne Hickson, Jr., appellant, and Gary
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Hall Spence met at a campsite in Radford, Virginia. Hickson and
Spence talked with a group of five or six other men. Spence
testified that he overheard Hickson mention that "somebody owed
him money."
Spence and Hickson left the campsite together between 8:30
and 9:00 p.m. in Hickson's car, and proceeded toward Elliston.
While driving on Route 460, Spence testified that Hickson stopped
the vehicle by the side of the road and exited the car. Spence
assumed that Hickson was "getting out to relieve hisself [sic]."
However, Spence stated that he then heard the "hatch rattling."
Spence testified that Hickson left the area of the car, but he
did not see where Hickson went. Spence stated that he next heard
an explosion. He observed flames off to the left of the car.
After Spence heard the explosion and saw the flames, Hickson
returned to the car and made a reference to "fire," but said
nothing further. Spence admitted he had consumed approximately
twelve beers that evening, although he said he was not drunk.
At approximately 11:15 p.m. that evening, Deputy Sheriff
Investigator Norman Croy, a specialist in fire investigation,
responded to a call from Michael Eastridge's mobile home, located
in the Elliston area of Montgomery County. When he arrived at
the scene, he found that the home was still partially on fire.
Croy found a red gasoline container at the rear of the trailer,
approximately six feet from the porch steps. Croy noticed random
patterns of gasoline both on and beneath the steps, which
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indicated that gas had been thrown quickly. He testified that
the fire "was started on the back porch with gasoline." Croy
stated that a fire set in this manner would cause a "flash" and
then an audible "whooshing sound." Through his investigation,
Croy determined that at the time of the fire, Hickson was
"associated" with a white car with a "hatch" rather than a trunk.
SUFFICIENCY OF THE EVIDENCE
Hickson claims the evidence was insufficient to sustain his
conviction for arson because the Commonwealth failed to prove he
was the person who started the fire. Where the sufficiency of
the evidence is an issue on appeal, an appellate court must view
the evidence and all reasonable inferences fairly deducible
therefrom in the light most favorable to the Commonwealth. Cheng
v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). On
appeal, the decision of a trial court sitting without a jury is
afforded the same weight as a jury's verdict and will not be
disturbed unless plainly wrong or without evidence to support it.
King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315
(1977).
The Commonwealth may prove the commission of the crime of
arson through circumstantial evidence if that evidence excludes
every reasonable hypothesis of innocence and points unerringly to
the defendant. Cook v. Commonwealth, 226 Va. 427, 309 S.E.2d 325(1983). Cook appealed his conviction for arson involving the
burning of an apartment leased to him, arguing in part that the
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Commonwealth's use of circumstantial evidence failed to prove
beyond a reasonable doubt that he had started the fire. See id.
at 431-32, 309 S.E.2d at 328.
The Cook Court noted that "[a]rson is a crime of stealth.
The perpetrator is seldom observed, seldom confesses, and if
skillful, leaves few traces of his presence. The proof is often
necessarily circumstantial." Id. at 432, 309 S.E.2d at 328-29.
Thus, "[w]here circumstantial evidence is sufficient to exclude
every reasonable hypothesis of innocence, it is sufficient to
support a conviction. The hypotheses which must be thus excluded
are those which flow from the evidence itself, and not from the
imaginations of defense counsel." Id. at 433, 309 S.E.2d at 329.
In support of his claim of innocence, Cook cited the
accessibility of others to the apartment at the time of the fire
and the presence of a key to the apartment beneath the doormat.
The Virginia Supreme Court held that "the jury considered these
facts and rejected, as it was fully entitled to do, the
inferences Cook contends it should have drawn. It is the
province of the jury to determine the inferences to be drawn from
circumstantial evidence." Id. at 432, 309 S.E.2d at 329. Among
the facts the Court noted in support of its affirmation of the
conviction were:
1) As a result of delinquent rent, Cook's personal
property in the apartment was subject to a
sheriff's levy;
2) Cook procured renter's insurance five days before
the fire;
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3) Although delinquent on his rent, Cook made sure
the premium on his fire insurance policy was paid;
4) Cook was the only person present at the apartment
on the night of the fire;
5) Cook lied about ownership of some of the personal
property;
6) Expert testimony excluded any reasonable
hypothesis of accidental cause; and
7) Cook was seen driving by the apartment immediately
after the fire was extinguished.
The Court found this circumstantial evidence in its entirety
sufficient to uphold the conviction.
In the matter now before us, Price testified that on the
morning of the fire, she saw a man in a white car approach
Eastridge's mobile home and heard yelling. That evening, Spence
testified that he overheard Hickson say someone owed him money.
Spence then accompanied Hickson to an area located within a
half-mile of the trailer home and heard Hickson open the rear
hatch of the vehicle. After Hickson walked away from the car,
Spence heard a small explosion and saw flames. Spence testified
that after hearing the explosion and seeing the flames, Hickson
returned to the car, making a reference to "fire." Deputy Croy
testified that the trailer home of Michael Eastridge was severely
damaged by a fire that was started with gasoline. Croy also
testified that at the time of the fire, Hickson was "associated"
with a white car that had a "hatch" rather than a trunk.
In testing the credibility and weight to be
ascribed in the evidence, we must give the
trial court . . . the wide discretion to
which a living record, as distinguished from
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a printed record, logically entitles them.
The living record contains many guideposts to
the truth which are not in the printed
record; not having seen them ourselves, we
should give great weight to the conclusions
of those who have seen and heard them.
Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259
(1989) (quoting Bradley v. Commonwealth, 196 Va. 1126, 1136, 86
S.E.2d 828, 834 (1955)).
Based upon the evidence, we cannot say the trial judge was
plainly wrong or that no credible evidence supports the
conviction. Additionally, we find that the circumstantial
evidence introduced excluded every reasonable hypothesis of
innocence. The judgment of the trial court is affirmed.
Affirmed.
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