Opinion
Record No. 2031-92-2
March 22, 1994
FROM THE CIRCUIT COURT OF NEW KENT COUNTY RUSSELL M. CARNEAL, JUDGE DESIGNATE.
John C. Jones, Jr., for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Leon M. Cowles, Jr. appeals his conviction for arson in violation of Code § 18.2-77. On appeal, he contends that the trial court erred (1) in admitting the testimony of Lt. McLaughlin describing the nature of the fire as incendiary rather than accidental; and (2) in concluding that the evidence was sufficient to support his arson conviction. The Commonwealth asserts that appellant failed to preserve his first assignment of error regarding the admissibility of McLaughlin's testimony. For the reasons that follow, we affirm appellant's conviction. Because the parties are familiar with the circumstances surrounding this case, we recite only those facts critical to our holding.
I.
Appellant contends that the trial court erred in allowing Lt. McLaughlin to testify as to whether the fire was incendiary in origin because this testimony reached an ultimate issue of fact — whether appellant intentionally set the fire. The Commonwealth asserts that appellant waived this assignment of error by failing to object in a timely fashion at trial.
We conclude first that our review of this issue is not barred. The record shows that appellant objected immediately when the prosecutor asked McLaughlin, "What evidence, if any, did you find that this [fire] was accidental in nature instead of intentionally set?" Despite the Commonwealth's assertions, appellant's failure to object to McLaughlin's earlier testimony that "[w]e eliminated the source as anything other than an incendiary fire," is not dispositive. Taken in context, McLaughlin's use of the term "incendiary fire" at the time did not mean one that had been intentionally set. Rather it is clear that he was using the term to mean a fire caused — either accidentally or intentionally — by the joining of an accelerant and a heat source not normally located at the point of origin, as opposed to a fire resulting from a malfunction in some electrical device such as a furnace or lamp. Thus, the appellant objected timely when McLaughlin was asked to give an opinion whether the fire was "intentionally set."
However, assuming without deciding that the prosecutor's original question — "What evidence, if any, did you find that this [fire] was accidental in nature instead of intentionally set?" — sought to elicit an improper response on an ultimate issue of fact, see Callahan v. Commonwealth, 8 Va. App. 135, 140, 379 S.E.2d 476, 479 (1989), we hold that the prosecutor's rephrasing of the question prevented any potential error. Neither the question the prosecutor ultimately posed nor the response he received improperly invaded the province of the trier of fact to determine intent. Following appellant's objection, the prosecutor asked McLaughlin, "What did you find consistent with, if anything, an accidental fire versus what did you find consistent with a set fire?" McLaughlin responded:
We found evidence of it being an incendiary fire, a set fire because there was no other — everything else was eliminated in that area. The burn pattern was consistent with a pour pattern of an accelerant, petroleum-based, free-flow type area of origin. The heaviest point of destruction was within that free-flow area. The frame of the trailer itself extended — in other words, bent towards the area of origin which is consistent with an incendiary fire caused by the use of accelerants because of the rapid and high intense burn in that area.
He also testified that he was unable to detect the residue of an accelerant which indicated one of three things: that he did not probe deeply enough in the debris; that the fire burned with such intensity that all of the accelerant had dissipated; or that "[the fire] was just set with newspapers on the floor." At no point during his testimony, however, did McLaughlin opine that the fire had been intentionally started, only that certain evidence was consistent with a fire that had been set and inconsistent with a fire from certain accidental causes.
We acknowledge our holding in Callahan, 8 Va. App. at 140, 379 S.E.2d at 479, that an expert's opinion "that the fire was incendiary or deliberately set was inadmissible." We conclude, however, that the term "incendiary" as was being used by McLaughlin and as understood by the parties and by the judge in this bench trial did not mean "intentional" or "deliberate." McLaughlin did not use the term "incendiary fire" to mean one that had been intentionally set, a fact that counsel for appellant conceded on oral argument before this Court. Rather he meant merely a fire caused either accidentally or intentionally by the joining of an accelerant and a heat source not normally located at the point of origin, as opposed to a fire resulting from a malfunction in some electrical device such as a furnace or lamp. As such, McLaughlin did nothing more than what is permitted under our case law:
A witness may detail the facts and observations which came to his attention while investigating the fire and may give his or her conclusions or opinions on such matters as where the fire started, the cause or source of ignition, how it proceeded, and whether and why certain accidental causes can be eliminated. However, the court must "permit [the trier of fact] to draw [its] own conclusions as to the cause" of the fire.
Id. at 139, 379 S.E.2d at 479.
II.
Appellant also argues that the evidence is insufficient as a matter of law to support his conviction.
The Commonwealth bore the burden in this case of proving that there was a burning, that the fire was intentional rather than accidental, and that the defendant was the criminal agent.Jefferson v. Commonwealth, 6 Va. App. 421, 423-24, 369 S.E.2d 212, 214 (1988). On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. "The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680). "[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing." Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987). Finally, "circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent . . ., it is practically theonly method of proof." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted). In this type of situation, "[a]ll necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence." Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987) (citation omitted).
The circumstantial evidence, viewed in the light most favorable to the Commonwealth, was clearly sufficient to show both that the fire was deliberately set and that appellant was the guilty agent. Appellant, who was the victim's ex-boyfriend, had threatened on several prior occasions to burn down the victim's trailer. He was angry when he arrived at the trailer, saying it was Otey's fault that he had been in jail. He was present when Otey put her cigarettes and Bic lighter in her purse, and when she tried to run away from him, he grabbed her purse. As Otey fled, she saw appellant fumbling with her purse as he walked back toward her trailer. When she left, only the furnace and a lamp were on, and Otey was not smoking. In addition, she saw no one else in the vicinity. Within twenty minutes, the trailer was completely engulfed in flames. When appellant, who did not smoke, was arrested an hour later, he had Otey's cigarette lighter in his pocket. The arson investigator who examined the scene testified that, although he was unable to detect an accelerant, the origin of the fire at the front door and its intensity and burn pattern were all inconsistent with an accidental fire. Although he admitted on cross-examination that the fire could have been caused by a cigarette igniting a pile of newspapers, he testified that no igniter source, such as a cigarette butt, was recovered and that the burn pattern, which was consistent with a pourable accelerant, made this unlikely. In addition, the record contained no evidence of paper products of any sort located near the door, only a sheet and curtain hanging nearby. Taken as a whole, the evidence was clearly sufficient to exclude all reasonable hypotheses of innocence.
For these reasons, we affirm appellant's conviction.
Affirmed.