Present: All the Justices
ROBERT WAYNE HICKSON, JR.
v. Record No. 982618 OPINION BY JUSTICE CYNTHIA D. KINSER
September 17, 1999
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The defendant, Robert Wayne Hickson, Jr., was
convicted of arson in a bench trial in the Circuit Court of
Montgomery County. 1 In an unpublished opinion, the Court of
Appeals found sufficient evidence to support the conviction
and affirmed the judgment of the circuit court. We granted
the defendant this appeal in which he again challenges the
sufficiency of the evidence. Because we conclude that the
evidence fails, as a matter of law, to establish that the
defendant was the person who committed the arson, we will
reverse the judgment of the Court of Appeals.
FACTS
A mobile home in which Charles Michael Eastridge,
Judith Eastridge, and Samantha Ray Thompson (the
Eastridges) lived was destroyed by fire on August 10, 1995.
1
The circuit court found the defendant guilty pursuant
to Code § 18.2-77. In pertinent part, that section
prohibits the malicious burning of any dwelling house or
manufactured home. The court sentenced the defendant to
five years incarceration, with three years and six months
suspended.
Their home was located in Elliston, behind a post office,
across railroad tracks, and near a river. It was situated
approximately one-half mile from Route 460 "[b]y the way a
crow flies."
Norman Croy, a Deputy Sheriff Investigator with the
Montgomery County Sheriff’s Office, investigated the fire.
Croy discovered a red gasoline container at the rear of the
mobile home approximately six feet from the steps that led
up to the porch. Croy testified that the container smelled
like gasoline and that a "minute amount" of gasoline
remained in the container. He also discovered a “flammable
liquid pour pattern” on the wooden back porch steps and
detected a gasoline odor in the soil underneath those
steps. Thus, Croy concluded that the fire started on those
steps as a result of gasoline having been poured on them
and ignited. 2
According to Croy, when a fire, such as the one in the
present case, is first ignited, there is a "flash"
accompanied by a "[v]ery audible" "whooshing sound."
However, he did not believe that the "whooshing sound"
could have been heard from a distance of one-half mile.
2
Through his investigation, Croy ruled out possible
accidental causes of the fire.
2
The Commonwealth’s evidence linking the defendant to
the fire was circumstantial. Gary Hall Spence testified
that he and the defendant met at a campground in Radford on
or about August 10, 1995. Spence stated, "To the best of
my recollection I can’t swear on the date." While at the
campground, Spence heard the defendant say that somebody
owed him money.
Spence and the defendant left the campground sometime
between 8:30 p.m. and 9:00 p.m. and went riding around the
Elliston area. At an unspecified time during their
journey, the pair stopped at a house to look at the
defendant’s race car. When Spence was asked what they did
after seeing the race car, he responded, "[W]e rode down on
[Route] 460 I guess it was and stopped on the side of the
road." After the defendant got out of the car, Spence
"heard the trunk lid open." Spence did not know where the
defendant went at that point, but Spence later heard an
explosion and saw flames "[o]ff to [his] left hand side."
After the defendant got back into the car, he and Spence
returned to the campground. Spence testified that the
defendant made some kind of reference to a fire.
On cross-examination, Spence admitted that he had a
"pretty good buzz on" from the beer he had been drinking
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earlier that night. He stated, "I was drunk[.] I can
drink 12 beers and still not be drunk."
Michelle Nicole Price, a neighbor of the Eastridges,
testified that, while she was walking her dog on the
morning of the day that the mobile home burned, she
observed a "white" car stop in front of the Eastridges’
yard. 3 She then heard someone yelling and thought that she
also heard rocks being thrown at a sign. Price believed
that the individual was a man, but she could neither see
what the person was doing nor hear what the individual was
yelling. She also thought that there was a second person
in the car but could not ascertain whether that individual
was a man or a woman.
STANDARD OF REVIEW
When, after being convicted of a crime, a defendant
challenges the sufficiency of the evidence, this Court must
view the evidence in the light most favorable to the
Commonwealth and accord the evidence all reasonable
inferences fairly deducible from it. Horton v.
Commonwealth, 255 Va. 606, 608, 499 S.E.2d 258, 259 (1998).
Since the defendant in this case was convicted by a trial
court sitting without a jury, the trial court’s judgment is
4
entitled to the same weight as a jury verdict and will not
be disturbed on appeal unless it is “plainly wrong or
without evidence to support it.” King v. Commonwealth, 217
Va. 601, 604, 231 S.E.2d 312, 315 (1977); Code § 8.01-680.
However, "it is just as obligatory upon the appellate
court, to set aside . . . the judgment of a court, when it
is, in its opinion, contrary to the law and evidence, and
therefore plainly wrong, as it is to sustain it when the
reverse is true." Bland v. Commonwealth, 177 Va. 819, 821,
13 S.E.2d 317, 317 (1941).
ANALYSIS
"Arson is a crime of stealth" and "[t]he proof is
often necessarily circumstantial." Cook v. Commonwealth,
226 Va. 427, 432, 309 S.E.2d 325, 329 (1983).
Circumstantial evidence in a case of arson, as in every
criminal case, can support a conviction if it sufficiently
excludes every reasonable hypothesis of innocence. Id. at
433, 309 S.E.2d at 329.
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.” Augustine v.
Commonwealth, 226 Va. 120, 123, 306 S.E.2d 886, 888 (1983).
3
During the course of his investigation, Croy learned
that Hickson was “associated” with a “white Chevrolet
5
The only issue in this appeal is whether the defendant was
the "guilty agent." Id.
With regard to this issue, the defendant argues that
the evidence fails to "'point unerringly'" to him as the
person who committed the arson. Id. (quoting Poulos v.
Commonwealth, 174 Va. 495, 499, 6 S.E.2d 666, 667 (1940)).
He contends that the Commonwealth’s evidence, which is
entirely circumstantial, does not exclude every reasonable
hypothesis of innocence and that the chain of necessary
circumstances "of motive, time, place, means, and conduct
[do not] concur to form an unbroken chain which links [him]
to the crime beyond a reasonable doubt." Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).
Thus, he asks that his conviction be reversed.
In contrast, the Commonwealth argues that sufficient
reasonable inferences flow from the evidence to prove that
the defendant was the criminal agent in the arson. These
inferences, according to the Commonwealth, are that the
defendant, on the morning of the arson, argued with someone
at the Eastridges’ home about money, later stopped at the
spot on Route 460 nearest to the mobile home, retrieved a
gasoline can from the rear of the car, walked the one-half
mile to the Eastridges’ home, and set it on fire. The
Chevette.”
6
Commonwealth contends that the testimony of Spence and
Price provides a sufficient evidentiary foundation for
these inferences.
After reviewing the evidence under the applicable
standard of appellate review and considering the parties’
arguments, we conclude that the circumstantial evidence in
the present case with regard to "motive, time, place,
means, and conduct" fails "to form an unbroken chain which
links the defendant to the crime beyond a reasonable
doubt." Bishop, 227 Va. at 169, 313 S.E.2d at 393. We
find numerous breaks in the chain that lead us to this
conclusion.
First, although Spence testified that he heard the
defendant state that somebody owed him money, Spence
admitted that the defendant did not say anything more
specific about that subject. The Commonwealth contends
that the defendant argued with someone at the Eastridges’
mobile home about money on the morning of the fire, but
Price, the neighbor, did not identify the defendant as that
person and could not hear the substance of what the
individual was yelling.
Next, Spence could not "swear" as to the date that he
and the defendant were riding around the Elliston area.
Spence also only "guess[ed]" that he and Hickson were on
7
Route 460 when they stopped on the side of the road. Even
if Spence was correct about the road number, he never
specified the spot on Route 460 where they stopped. The
evidence establishes that the point on Route 460 nearest to
the Eastridges’ mobile home was one-half mile away "[b]y
the way a crow flies." So, assuming that they stopped at
that point on Route 460, the defendant would have had to
walk one-half mile to the Eastridges’ home, pour gasoline
on the steps, ignite it, and walk one-half mile back to the
car. But, Spence did not state anything about the length
of time that the defendant was gone after they stopped on
the side of the road or how much time elapsed from when he
heard the explosion until the defendant returned to the
car. Furthermore, Croy doubted that the sound that would
have been produced when this fire was ignited could have
been heard one-half mile away.
Finally, Spence testified that he saw flames "[o]ff to
[his] left hand side." However, the record contains no
evidence establishing which direction Spence and the
defendant were travelling when they stopped on Route 460.
Thus, a trier of fact could not determine, without
speculating, whether the flames Spence observed "[o]ff to
[his] left hand side" originated in the area where the
Eastridges’ mobile home was located.
8
Thus, we conclude that the evidence in this case is
insufficient as a matter of law to support the defendant’s
conviction. Accordingly, we will reverse the judgment of
the Court of Appeals and dismiss the indictment.
Reversed and dismissed.
9