PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, Lemons,
JJ., and Compton, S.J.
MARC ANDRE SCHWARTZ OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 031698 April 23, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Shortly after midnight on Monday, May 28, 2001, defendant
Marc Andre Schwartz and three male companions, all teenagers and
fueled by consumption of alcoholic beverages, embarked on a
vandalism spree in western Henrico County. During the next
several hours, the group broke windows in school busses and an
automobile with bats and tools, and slashed tires on motor
vehicles with a knife. Shortly before 2:45 a.m., in heavy rain,
the vandals arrived at the residence of Michael Wayne Drye, whom
they did not know.
Drye's two vehicles, a Ford pickup truck with a camper
shell on the rear and a Ford Explorer sport utility vehicle,
were parked in his driveway adjacent to one another. The truck
was three to four feet from the dwelling and the Explorer was
six to eight feet from the home.
The boys first attempted unsuccessfully to overturn the
truck. Then, using diesel fuel found in containers within the
camper shell, the culprits, with difficulty, set fire to the
truck, left and, after returning to the scene several times,
eventually fled the area. The fire spread from the truck to the
sport utility vehicle and then to the residence, which became
engulfed in flames.
The vehicles were destroyed and the home heavily damaged.
Drye's property loss was estimated to be in the sum of $250,000.
Drye, who was alone in the house at the time, escaped without
injury.
Following detention of the defendant on June 1, 2001,
charges against him were transferred from the juvenile and
domestic relations district court to the circuit court, where he
was indicted for three felonies. In one indictment, defendant
was charged with malicious burning of an occupied dwelling, in
violation of Code § 18.2-77. In two separate indictments, he
was charged with malicious burning of personal property, the
pickup truck and the Explorer, in violation of Code § 18.2-81.
Following a bench trial in the circuit court, the defendant
was found guilty of all three charges of arson and sentenced in
January 2002 to incarceration, most of which was suspended.
Upon review, the Court of Appeals of Virginia affirmed the
convictions. Schwartz v. Commonwealth, 41 Va. App. 61, 581
S.E.2d 891 (2003).
We awarded defendant this appeal, limited to consideration
of one assignment of error, that is, whether: "The trial court
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erred in finding Schwartz guilty of three counts of arson when
the evidence revealed there was only one point of ignition, a
pick-up truck, which later spread to another vehicle and the
residence."
In this appeal, the defendant does not contest his
conviction for arson of the occupied dwelling. Rather, he seeks
dismissal of the two convictions for burning the vehicles,
Drye's personal property.
The defendant argues: "There was only one act of ignition
for the residence and the two vehicles. The three properties
had one owner. . . . Clearly there was only 'one discrete
criminal act' committed and Schwartz has been convicted and
punished for three offenses."
We do not agree with defendant's argument. The decision of
this appeal turns upon application to these facts of the
relevant statutes' clear terms.
Code § 18.2-77(A), as pertinent, provides: "If any person
maliciously (i) burns, or by use of any . . . substance
destroys, in whole or in part, or causes to be burned or
destroyed, or (ii) aids, counsels or procures the burning or
destruction of any . . . occupied . . . house . . . , he shall
be guilty of a felony . . . . Any person who maliciously sets
fire to anything, or aids, counsels or procures the setting fire
to anything, by the burning whereof such occupied dwelling house
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. . . is burned shall be guilty of a violation of this
subsection."
Code § 18.2-81, as pertinent, provides: "If any person
maliciously . . . set fire to or burn or destroy by any . . .
substance, or cause to be burned, or destroyed by any . . .
substance, or aid, counsel, or procure the burning or destroying
by any . . . substance, of any personal property, . . . he
shall, if the thing burnt or destroyed, be of the value of $200
or more, be guilty of a Class 4 felony."
We agree with the Court of Appeals' statement that "the
plain language" of the foregoing statutes demonstrates that the
General Assembly "intended to allow multiple arson convictions
under circumstances such as those presented in this case."
Schwartz, 41 Va. App. at 74, 581 S.E.2d at 897-98.
In contending there was only one criminal act, the
defendant has argued that the word "anything" in § 18.2-77 means
the personal property referred to in § 18.2-81. However, the
term "anything" in § 18.2-77 refers to the accelerant used to
start the fire of a dwelling, not the object of the fire. The
statutory language proscribes "the setting fire to anything, by
the burning whereof such occupied dwelling house . . . is
burned."
In separate statutes, the legislature has criminalized the
arson of an occupied dwelling, on the one hand, and the arson of
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personal property, on the other. The personal property here was
two distinct, different vehicles that were separately identified
and parked outside the dwelling. The dwelling and the two
vehicles occupied different locations. Thus, we hold the
legislature intended that, under these circumstances, there
should be three units of prosecution, viz., for the burning of
the dwelling and for the burning of each vehicle.
While we agree with the foregoing statement of the Court of
Appeals, we disagree with that Court's further observation that
"Code § 18.2-81, by its plain language, creates a single and
separate unit of prosecution for each item of personal property
destroyed as the result of arson." Id. at 75, 581 S.E.2d at
898.
As the Court of Appeals' Chief Judge pointed out in her
concurrence in Schwartz, "[t]his could be construed as
permitting a separate arson prosecution for every item destroyed
in a home or car, such as a shoe, a sock, a pillow, etc." Id.
at 77, 581 S.E.2d at 899. As she noted, that literal
construction of the statute would improperly yield an absurd
result. Id.
We conclude that the circuit court did not err in finding
the defendant guilty of three counts of arson. Therefore, the
judgment of the Court of Appeals confirming these convictions
will be
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Affirmed.∗
∗
This decision, of course, leaves in place the Court of
Appeals' order of remand to the circuit court for modification
of the sentencing order, regarding the defendant's convictions
for vandalism and possession of alcohol, to reflect they were
actually juvenile convictions as opposed to adult convictions.
See 41 Va. App. at 76, 581 S.E.2d at 898-99.
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