COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
WILLIAM I. MARABLE
OPINION BY
v. Record No. 0361-97-2 JUDGE JOSEPH E. BAKER
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
William L. Wellons, Judge
Joseph M. Teefey, Jr., Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
William I. Marable (appellant) appeals from his bench trial
conviction by the Circuit Court of Lunenburg County (trial court)
for burning an occupied dwelling in violation of Code
§ 18.2-77(A). Appellant contends the evidence was insufficient
to prove (1) that the burning was intentional and (2) that he was
the criminal agent. He also contends the evidence was
insufficient to prove that the burned building was "occupied" and
that, as a consequence he was subject, at most, to the lesser
punishment contained in Code § 18.2-77(B) for the burning of an
unoccupied dwelling. Finding no error, we affirm the judgment of
the trial court.
Stated in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom, the evidence discloses that appellant lived with
Gloria Folks in her rented residence in Chase City, Virginia.
After an argument on August 16, 1996, Folks told him to leave.
Appellant stayed the night of August 16 and left the morning of
August 17, but returned, intoxicated, around 8:00 p.m. that
evening. Folks refused appellant's demand for food and again
told him to leave. While cursing her, appellant told Folks that
he was "staying right here," was "going to eat," and that there
was "nothing [she] can do about it." When Folks pushed appellant
to try to make him leave, he became violent and said, "I'm tired
of you and your sister and your friend. . . . I'm going to kill
all of you m-fs." When Folks attempted to leave, appellant tried
to force her back into the house. She broke free and ran into
the house. Appellant followed, assaulted Folks, and then
threatened to kill her and burn her house.
Folks managed to escape and drove to appellant's mother's
house to call the police. Denise Jones, Folks' next door
neighbor, observed the confrontation and Folks' departure.
Within three or four seconds of Folks' departure, Jones saw fire
coming from a window of Folks' house. When informed by Jones
that the house was afire, Folks returned and found appellant
sitting on his car watching her house burn. Appellant was
yelling, "[L]et it burn," and said, "If I can't live in it, ain't
nobody going to live in it." In addition, when fire fighter
Whitaker arrived, appellant cursed him and said, "Let it burn."
Appellant admitted to Deputy Sheriff Stokes that he caused
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the fire but claimed it was accidental. Appellant said:
I lit a cigarette and dropped a match on the
gas that was on the porch. There were two
containers of gas on the porch. I was
putting gas in the lawn mower, when I dropped
a match . . . and it caught fire. . . .
Gloria Folks and I had an argument. She
slapped and choked me. I grabbed her and
ripped her shirt. She left and went down the
road. I tried to stop her, but could not. I
said, I'd better finish cutting the grass.
And that's when I lit . . . the cigarette and
dropped the match on the porch. And that's
when the gas caught on fire.
State police arson expert Danny Beamon testified that the
burn pattern disclosed the fire started inside the house in a
loveseat and that the fire was very hot and spread rapidly,
shattering windows. He eliminated as a cause any electrical
malfunction, lightning, or lawn mower gas as sources. Beamon
said the only fire outside the house originated from inside.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth.
See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,
418 (1987). The credibility of a witness and the inferences to
be drawn from proven facts are matters solely for the fact
finder's determination. See Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989). 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. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en
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banc).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983). "[T]he Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Whether a hypothesis of innocence is reasonable is a question of
fact. See Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373
S.E.2d 328, 339 (1988).
I. Proof of Arson and Criminal Agency
The Commonwealth had the burden to prove beyond a reasonable
doubt both that the fire was incendiary and that the accused was
the criminal agent. See Jones v. Commonwealth, 103 Va. 1012,
1019, 44 S.E. 663, 666 (1905). Although fires are presumed to be
accidental, that presumption is rebuttable. See Knight v.
Commonwealth, 225 Va. 85, 89, 300 S.E.2d 600, 601-02 (1983).
Here, as in Knight, the presumption of accident was clearly
negated by the expert testimony of State Police Officer Beamon.
No evidence proved that any potential arsonist other than
appellant was present when the fire broke out. With "the
testimony of a qualified expert . . . negat[ing] every reasonable
possibility that a fire was of accidental origin," the fact
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finder was entitled to reject any conflicting evidence relative
to accidental cause. See Cook v. Commonwealth, 226 Va. 427, 432,
309 S.E.2d 325, 328 (1983).
Beamon's testimony, coupled with other evidence, rebutted
appellant's claim that the burning was accidental and showed
arson as its cause. Appellant was angry with Folks, had
threatened to burn the house just minutes before Folks fled, and
said that no one would live in the house if he could not. He
told fire fighters to "let it burn." Appellant admitted starting
the fire but claimed it started accidentally outside on the deck.
However, based on evidence that the fire started inside the
house in the loveseat rather than outside on the deck, the court
was entitled to conclude that appellant also lied when he said
the fire was accidental. The evidence, including appellant's
lack of veracity, effectively overcame the presumption of
accident and is sufficient to support the fact finder's
conclusion that appellant was the criminal agent.
II. Occupancy
The indictment charged that, "on or about the 17th day of
August, 1996, in the County of Lunenburg, Virginia, [William
Marable] did unlawfully, feloniously and maliciously burn the
occupied dwelling house of Gloria Fowlkes [sic], against the
peace and dignity of the Commonwealth of Virginia," in violation
of Code § 18.2-77, which proscribes arson as a felony. Appellant
contends Code § 18.2-77(B) reduces the penalty for arson when the
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dwelling is unoccupied and that "the Commonwealth's own evidence"
proved "there wasn't anybody in that house." The record proved
that Folks and appellant lived in the house, which Folks rented
from her brother-in-law. Folks fled the residence immediately
prior to the fire, but no direct evidence proved whether anyone
else was present in the house when the fire was set.
The portion of Code § 18.2-77(A) relevant to the indictment
provides that if "any person maliciously (i) burns . . . or
causes to be burned . . . any dwelling house . . . or other house
in which persons usually dwell[,] . . . he shall be guilty of a
felony, punishable by imprisonment for life or for any period not
less than five years and . . . a fine of not more than $100,000."
Subsection (B) of Code § 18.2-77 provides that "[a]ny such
burning or destruction when the building or other place mentioned
in subsection A is unoccupied, shall be punishable as a Class 4
felony."
Appellant asks us to construe "occupied" and "unoccupied" as
used in Code § 18.2-77 to require proof that a person was
physically on the premises burned before an accused may be found
guilty under subsection (A) of the statute. We decline the
request. "When the legislature has spoken plainly, it is not the
function of courts to change or amend its enactments under the
guise of construing them." Winston v. City of Richmond, 196 Va.
403, 407-08, 83 S.E.2d 728, 731 (1954). "'The province of
construction lies wholly within the domain of ambiguity,'" and
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that which is plain needs no interpretation. Almond v. Gilmer,
188 Va. 1, 14, 49 S.E.2d 431, 439 (1948) (quoting Hamilton v.
Rathbone, 175 U.S. 414, 421 (1899)). Webster's New International
Dictionary 2505 (3d ed. 1986) (emphasis added), defines
"unoccupied" as "not occupied by inhabitants" or "relating to
. . . premises on which no one is living although the furniture
and fixtures have not been removed" and suggests comparison with
"vacant." When pertaining to "premises," vacant means "premises
which are not lived in and from which the furniture and fixtures
have been removed." Id. at 2527. Black's Law Dictionary 1379
(5th ed. 1979), states that the temporary absence of occupants of
a dwelling house does not render the dwelling "unoccupied." This
same principle applied at common law. See Davis v. Commonwealth,
16 Va. App. 6, 8, 427 S.E.2d 441, 442 (1993) (citing State v.
Gulley, 266 S.E.2d 8, 8 (N.C. Ct. App. 1980)).
Our holding in Davis further shows the clear meaning of the
word "unoccupied." In Davis, this Court considered an earlier
version of Code § 18.2-77. The earlier version of the statute
reduced arson from a Class 2 to a Class 3 felony if the dwelling
burned was "temporarily unoccupied." We held that when the
dwelling was burned at a time when all its occupants were out of
the house merely to rent a movie, the words "temporarily
unoccupied" did not exempt the arsonist from being punished as a
Class 2 felon. If the legislature had intended "unoccupied" to
mean "when no person is in the building," we concluded, it would
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have said so as it did when enacting Code §§ 18.2-79 and 18.2-80.
See 16 Va. App. at 7-8, 427 S.E.2d at 442.
Appellant argues that, because the legislature subsequently
deleted the word "temporarily," we should construe Code § 18.2-77
to require proof that one or more people were physically present
in the dwelling at the time of the burning. We disagree. In
Johnson v. Commonwealth, 18 Va. App. 441, 446-47, 444 S.E.2d 559,
562 (1994), we said that the term "dwelling house" means a place
which human beings regularly use for sleeping even though the
occupants are temporarily absent, see Rash v. Commonwealth, 9 Va.
App. 22, 26-27, 383 S.E.2d 749, 751 (1989), and that the
legislature's use of the adjective "occupied" to modify "dwelling
house" did not require contemporaneous physical occupation. See
Johnson, 18 Va. App. at 447, 444 S.E.2d at 562. Although Johnson
involved an interpretation of Code § 18.2-92, a breaking and
entering statute, we find no reason to distinguish between the
two statutes. Therefore, we hold that the legislature's use of
the term "unoccupied" was not intended to reduce the punishment
for violation of Code § 18.2-77 where the occupant or occupants
are merely temporarily absent but continue to reside there. The
record here proved that the burned premises was a dwelling house
"occupied" by Folks within the meaning of the statute and that
her absence was temporary at most. For these reasons, the
evidence is sufficient to support appellant's conviction under
Code § 18.2-77(A).
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Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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