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HICKSON v. COMMONWEALTH
September 17, 1999
Record No. 982618
ROBERT WAYNE HICKSON, JR.
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
OPINION BY JUSTICE CYNTHIA D. KINSER
The defendant, Robert Wayne Hickson, Jr., was
convicted of arson in a bench trial in the Circuit Court of
Montgomery County. In an unpublished opinion, the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.
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. 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
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.
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.
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 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.
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
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 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).
"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). 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 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
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 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.
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.
 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.
 Through his investigation, Croy ruled out possible
accidental causes of the fire.
 During the course of his investigation, Croy learned
that Hickson was "associated" with a "white