COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
JASPER PLOWDEN
MEMORANDUM OPINION *
v. Record No. 1620-96-2 BY JUDGE JOSEPH E. BAKER
JUNE 10, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Melissa A. Hobbie (Phillips, Webb &
Wallerstein, P.C., on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jasper Plowden (appellant) appeals from his bench trial
conviction for arson of a dwelling house in violation of Code
§ 18.2-77. The sole issue presented by this appeal is whether
the evidence was sufficient to prove beyond a reasonable doubt
that appellant was the criminal agent who caused the dwelling
house to burn.
Viewing the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom, Martin v. Commonwealth, 4 Va. App. 438, 443,
358 S.E.2d 415, 418 (1987), we find that prior to March 11, 1996,
the date of the fire from which this case arises, appellant and
his friend Martha Allen had been lovers for approximately nine
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
years. Appellant and Martha resided together "off and on." In
February 1995, appellant learned that Martha was possibly
enjoying a relationship with another man. Appellant threatened
to harm Martha if he caught her with another man. In June or
July 1995, appellant and Martha "broke up."
By March 1996, appellant and Martha had revived their
relationship on a periodic basis, and appellant again was living
with her at her apartment "off and on." At the time of the fire,
appellant kept clothes, furniture, a musical instrument, and
other personal objects at Martha's house. In the afternoon of
March 11, 1996, Martha observed appellant enter her house. After
a brief conversation with her, appellant walked upstairs to use
the bathroom. Appellant had nothing in his hands as he climbed
the stairs. After about four to five minutes, while appellant
alone remained upstairs and in the bathroom, Martha heard a loud
noise emanate from the second floor. A window air conditioner
had blown out from an upstairs window and onto the ground.
Neither Martha nor her daughter who were inside the house saw,
heard, or smelled anything unusual in the house prior to the loud
noise.
Two or three minutes after the loud noise occurred,
appellant walked down the stairs and, speaking slowly, informed
Martha that there was a fire upstairs. Investigation by Fire
Investigator Allen Collins revealed that two fires had started:
one in the main bedroom where the air conditioner was located,
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and one in another bedroom. There was no fire trail from one
room to the other. Collins ruled out electrical receptacles and
sockets as a cause of the fire. He opined that the two separate
fires, the exploded air conditioner unit, and the heat of the
fires were consistent with the use of an accelerant and
inconsistent with an accidental slow burning fire. 1 He further
testified that if an accelerant was used it would have taken "a
pint or more" to create the type of fire in the apartment. Floor
samples were taken to test for accelerants, and no paint,
propane, gasoline, or other combustible material was found inside
or outside the house. Collins observed appellant and did not
smell any burn or accelerant odor about him. Moreover, a
television in one of the upstairs bedrooms away from the air
conditioner also burned. Collins admitted that he could not tell
whether the fire originated from the television set. Collins
could not state the point of origin for either of the two fires.
In order to support a conviction for arson, it is essential
that the evidence reveal that the fire was of incendiary origin
and that it point unerringly to the guilty party. Poulos v.
Commonwealth, 174 Va. 495, 499, 6 S.E.2d 666, 667 (1940). Even
assuming that the fires here were of an incendiary origin, the
evidence does not show beyond a reasonable doubt that appellant
started them. "'Evidence only that a fire was incendiary, that
1
Collins did not state as a definite opinion that the damage
resulted from use of accelerants and was unable to give a
positive statement as to the actual cause of the fire.
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the defendant had an opportunity to commit the crime, and that he
cherished ill feelings towards the owner of the property
destroyed, does not warrant a conviction.'" Id. at 500, 6 S.E.2d
at 667-68 (citation omitted). In reversing Poulos' arson
conviction, the Virginia Supreme Court quoted the following
language from Jones v. Commonwealth, 103 Va. 1012, 1013, 49 S.E.
663, 665 (1905):
"The prisoner is presumed to be innocent
until his guilt is established, and he is not
to be prejudiced by the inability of the
Commonwealth to point out any other criminal
agent, nor is he called upon to vindicate his
own innocence by naming the guilty man. He
rests secure in that presumption of innocence
until proof is adduced which establishes his
guilt beyond a reasonable doubt, and whether
the proof be direct or circumstantial, it
must be such as excludes any rational
hypothesis of the innocence of the prisoner."
Poulos, 174 Va. at 500, 6 S.E.2d at 667.
While there may be some suspicion that the fires here were
of an incendiary origin, on the facts contained in this record,
we hold that the evidence does not support the judgment of the
trial court. The Commonwealth did not present sufficient
evidence to prove beyond a reasonable doubt that appellant was
the criminal agent who started the fires.
Accordingly, the judgment of the trial court is reversed,
and appellant is dismissed from further prosecution pursuant to
the indictment.
Reversed and dismissed.
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