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HICKSON v. COMMONWEALTH OF VA


HICKSON

v.

COMMONWEALTH OF VA

(unpublished)


NOVEMBER 17, 1998

Record No. 2482-97-3

 

ROBERT WAYNE HICKSON,
JR.

v.

COMMONWEALTH OF VIRGINIA

 

Ray W. Grubbs, Judge

Argued at Salem,
Virginia

Present: Judges Coleman,
Bumgardner and Lemons

MEMORANDUM OPINION [1] BY JUDGE DONALD W. LEMONS

FROM THE CIRCUIT COURT
OF MONTGOMERY COUNTY

Dutton Olinger
(Attorneys & Counselors at Law of America, P.C., on briefs),
for appellant.

Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Robert Wayne Hickson,
Jr. was convicted in a bench trial of arson. On appeal, he
contends the evidence was insufficient to sustain his conviction.
We disagree and affirm the conviction.

BACKGROUND

On the morning of August 10, 1995, Michelle
Nicole Price observed a white car stop in front of a trailer home
owned by Michael Eastridge. Eastridge’s trailer home was located
next to Price’s house. Price saw a man exit the car and overheard
yelling and what appeared to be rocks hitting a sign. She saw the
man return to the car, in which a passenger remained seated, and
drive away.

That evening, Robert
Wayne Hickson, Jr., appellant, and Gary Hall Spence met at a
campsite in Radford, Virginia. Hickson and Spence talked with a
group of five or six other men. Spence testified that he
overheard Hickson mention that "somebody owed him
money."

Spence and Hickson left
the campsite together between 8:30 and 9:00 p.m. in Hickson’s
car, and proceeded toward Elliston. While driving on Route 460,
Spence testified that Hickson stopped the vehicle by the side of
the road and exited the car. Spence assumed that Hickson was
"getting out to relieve hisself [sic]." However, Spence
stated that he then heard the "hatch rattling." Spence
testified that Hickson left the area of the car, but he did not
see where Hickson went. Spence stated that he next heard an
explosion. He observed flames off to the left of the car. After
Spence heard the explosion and saw the flames, Hickson returned
to the car and made a reference to "fire," but said
nothing further. Spence admitted he had consumed approximately
twelve beers that evening, although he said he was not drunk.

At approximately 11:15
p.m. that evening, Deputy Sheriff Investigator Norman Croy, a
specialist in fire investigation, responded to a call from
Michael Eastridge’s mobile home, located in the Elliston area of
Montgomery County. When he arrived at the scene, he found that
the home was still partially on fire. Croy found a red gasoline
container at the rear of the trailer, approximately six feet from
the porch steps. Croy noticed random patterns of gasoline both on
and beneath the steps, which indicated that gas had been thrown
quickly. He testified that the fire "was started on the back
porch with gasoline." Croy stated that a fire set in this
manner would cause a "flash" and then an audible
"whooshing sound." Through his investigation, Croy
determined that at the time of the fire, Hickson was
"associated" with a white car with a "hatch"
rather than a trunk.

SUFFICIENCY OF THE
EVIDENCE

Hickson claims the
evidence was insufficient to sustain his conviction for arson
because the Commonwealth failed to prove he was the person who
started the fire. Where the sufficiency of the evidence is an
issue on appeal, an appellate court must view the evidence and
all reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. Cheng v. Commonwealth,
240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). On appeal, the
decision of a trial court sitting without a jury is afforded the
same weight as a jury’s verdict and will not be disturbed unless
plainly wrong or without evidence to support it. King v.
Commonwealth
, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977).

The Commonwealth may
prove the commission of the crime of arson through circumstantial
evidence if that evidence excludes every reasonable hypothesis of
innocence and points unerringly to the defendant. Cook v.
Commonwealth
, 226 Va. 427, 309 S.E.2d 325 (1983). Cook
appealed his conviction for arson involving the burning of an
apartment leased to him, arguing in part that the Commonwealth’s
use of circumstantial evidence failed to prove beyond a
reasonable doubt that he had started the fire. See id.
at 431-32, 309 S.E.2d at 328.

The Cook Court
noted that "[a]rson is a crime of stealth. The perpetrator
is seldom observed, seldom confesses, and if skillful, leaves few
traces of his presence. The proof is often necessarily
circumstantial." Id. at 432, 309 S.E.2d at 328-29.
Thus, "[w]here circumstantial evidence is sufficient to
exclude every reasonable hypothesis of innocence, it is
sufficient to support a conviction. The hypotheses which must be
thus excluded are those which flow from the evidence itself, and
not from the imaginations of defense counsel." Id. at
433, 309 S.E.2d at 329. In support of his claim of innocence,
Cook cited the accessibility of others to the apartment at the
time of the fire and the presence of a key to the apartment
beneath the doormat. The Virginia Supreme Court held that
"the jury considered these facts and rejected, as it was
fully entitled to do, the inferences Cook contends it should have
drawn. It is the province of the jury to determine the inferences
to be drawn from circumstantial evidence." Id. at
432, 309 S.E.2d at 329. Among the facts the Court noted in
support of its affirmation of the conviction were:

1) As a result of
delinquent rent, Cook’s personal property in the apartment
was subject to a sheriff’s levy;

2) Cook procured
renter’s insurance five days before the fire;

3) Although
delinquent on his rent, Cook made sure the premium on his
fire insurance policy was paid;

4) Cook was the only
person present at the apartment on the night of the fire;

5) Cook lied about
ownership of some of the personal property;

6) Expert testimony
excluded any reasonable hypothesis of accidental cause; and

7) Cook was seen
driving by the apartment immediately after the fire was
extinguished.

The Court found this
circumstantial evidence in its entirety sufficient to uphold the
conviction.

In the matter now before
us, Price testified that on the morning of the fire, she saw a
man in a white car approach Eastridge’s mobile home and heard
yelling. That evening, Spence testified that he overheard Hickson
say someone owed him money. Spence then accompanied Hickson to an
area located within a half-mile of the trailer home and heard
Hickson open the rear hatch of the vehicle. After Hickson walked
away from the car, Spence heard a small explosion and saw flames.
Spence testified that after hearing the explosion and seeing the
flames, Hickson returned to the car, making a reference to
"fire." Deputy Croy testified that the trailer home of
Michael Eastridge was severely damaged by a fire that was started
with gasoline. Croy also testified that at the time of the fire,
Hickson was "associated" with a white car that had a
"hatch" rather than a trunk.

In testing the
credibility and weight to be ascribed in the evidence, we
must give the trial court . . . the wide
discretion to which a living record, as distinguished from a
printed record, logically entitles them. The living record
contains many guideposts to the truth which are not in the
printed record; not having seen them ourselves, we should
give great weight to the conclusions of those who have seen
and heard them.

Swanson v.
Commonwealth
, 8 Va. App. 376, 379, 382 S.E.2d 258, 259 (1989)
(quoting Bradley v. Commonwealth, 196 Va. 1126, 1136, 86
S.E.2d 828, 834 (1955)).

Based upon the evidence,
we cannot say the trial judge was plainly wrong or that no
credible evidence supports the conviction. Additionally, we find
that the circumstantial evidence introduced excluded every
reasonable hypothesis of innocence. The judgment of the trial
court is affirmed.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code Sect. 17-116.010
this opinion is not designated for publication.

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