Sufficient evidence for arson conviction

There was sufficient evidence that appellant set fire to his fiancée’s rented home. His conviction of arson of an occupied dwelling is affirmed.

Motive and opportunity

“The appellant argues that the evidence is insufficient to prove that he was the criminal agent because it leaves open the reasonable hypothesis that someone else set the fire. … 

“On the day of the fire, he had just recently reunited with Kingery [his fiancée], with whom he had a rocky relationship. The appellant had been drinking in the hours prior to the fire and was angry with her. 

“When Kingery and the appellant met at the bar that evening to talk about their relationship, he became even angrier, yelling, cursing, and ultimately storming out of the bar. Within about an hour of the appellant’s angry departure, someone set fire to the residence he had shared with Kingery. This evidence establishes that the appellant had a motive to set the fire.

“The evidence relating to the cell phone calls that the appellant made that night supports the inference that he had the opportunity to commit the offense. Phone records confirmed that the appellant was in the area of Omega’s Bar at 9:10 p.m. Based on testimony that travel time between Omega’s and the residence was about twenty minutes, he could have been back at the residence even before 9:30 p.m. 

“Additionally, phone records confirmed that the appellant made a call from the area of the residence at 9:57 p.m. Therefore, he had more than twenty-five minutes to enter the home with his key, remove his personal belongings, let his dog out of the residence, pour gasoline in various locations inside, turn on the gas stove, start the fire on the bed, and return to the area of Omega’s Bar.”

At the scene

“In addition to establishing that the appellant had the motive and opportunity to set the fire, other evidence supports the finding that he was in fact the person who did so. By the appellant’s own admission, he entered the home that night and removed his personal belongings. He claimed that he did so in a deliberate fashion early in the evening, before he met Kingery at the bar between 8:00 and 8:30 p.m. 

“However, the evidence established that he removed his belongings in a hurry and left a few things behind, including a single shoe and a few articles of clothing. Also, on the nightstand in the master bedroom from which he had removed his clothing, there was a red gas can and an open beer bottle wrapped in a brown paper bag. 

“The record further supports a finding that while at the house, the appellant put his dog Boss outside, raising the inference that he did so to protect the dog from the fire. In light of this evidence, the trial court was entitled to disbelieve the appellant’s self-serving testimony that he entered the house earlier in the evening and to conclude instead that he was there later, after his fight with Kingery at Omega’s, just in time to use the gasoline to start the fire that Kingery’s children detected upon their return shortly after 10:00 p.m. …

“No evidence established that any part of the exterior of the home, other than the window broken out by the fire, had been breached. The house was locked when Kingery left, and likewise it was locked when her children returned home and discovered the fire. Although one of the windows to the residence had been broken out, the judge found that the location of the glass outside the window rather than inside the residence, as depicted in photographs of the scene, indicated that the heat from the fire had broken the window by pushing it outward. 

“Other evidence in the record, which included proof that the fire inside the house burned directly adjacent to that window, supports the trial court’s finding on that point. Further, the appellant had a key to the residence, as confirmed by his admission that he entered that evening to remove his clothing, and no evidence established that anyone else with a motive could have entered the locked residence and started the fire that night.”

Other evidence

“The appellant’s responses upon learning about the fire also implicated him as the criminal agent. When Kingery phoned him crying and reported that their house was on fire, he did nothing more than call her a ‘crazy bitch.’ When the appellant called her back that night and inquired about the fire, he asked only about the condition of the house, not about her children or the pets, and he refused to tell her his location. 

“Later, when Kingery’s mother saw the appellant’s truck driving slowly by the house at about 4:00 a.m., he immediately fled instead of stopping to check on the condition of the house or its residents. The fact finder could reasonably have inferred that an innocent person in the appellant’s position would have inquired about Kingery, her children, and their pets. 

“It could also have concluded that an innocent person would have abandoned his anger and come to the house to offer comfort rather than merely driving by and fleeing when his truck was spotted.”

Conclusion

“[W]e hold that the evidence was sufficient to prove that the appellant was the criminal agent in the arson of the residence. 

“We also conclude that the appellant failed to preserve his challenge to the sufficiency of the evidence to prove a burning because he did not obtain a ruling on the issue in the trial court. 

“Finally, we conclude that the ends-of-justice exception to Rule 5A:18 does not apply because the evidence did not affirmatively prove that a burning of the dwelling or its fixtures did not occur. 

“Consequently, we affirm the appellant’s conviction.”

Blanding v. Commonwealth, Record No. 1339-19-2, Dec. 15, 2020. CAV (Decker) from Dinwiddie County Cir. Ct. (Teefey). Makiba Gaines for appellant, Kelsey M. Bulger for appellee. VLW 020-7-231, 17 pp. Unpublished.