COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Olitsky ∗ Argued at Richmond, Virginia
PHILLYSTENE TUCKER JEFFERSON MEMORANDUM OPINION ∗∗ BY v. Record No. 2706-98-2 JUDGE ROBERT J. HUMPHREYS AUGUST 22, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Thomas V. Warren, Judge
Wade A. Jacobson for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Phillystene Tucker Jefferson appeals her conviction in a
bench trial for malicious burning of a structure in violation of
Virginia Code § 18.2-80. Jefferson claims that the trial court
erred in finding the evidence sufficient as a matter of law to
support the conviction. We disagree and for the reasons that
follow, affirm her conviction.
I. Background
Jefferson and Berkley Haskins have a fourteen-year-old
daughter but have never been married. The relationship between
∗ Retired Judge Norman Olitsky took part in the consideration of this case by designation pursuant to Code § 17.1-400, recodifying Code § 17-116.01. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.101, this opinion is not designated for publication. Jefferson and Haskins has been contentious. In particular, they
have had disagreements regarding their daughter and various
custody issues.
During the early morning hours of April 18, 1998, at
approximately 2:00 a.m., Haskins, who had custody of the
daughter by court order, telephoned Jefferson to inform her that
he had had the daughter arrested the previous day. On April 21,
1998 and April 22, 1998, Jefferson made a number of telephone
calls to Haskins' home asking to speak with the daughter.
Haskins testified that when Jefferson spoke to the daughter, the
daughter told him she didn't want to speak to Jefferson and
handed him the phone. Haskins then hung up on Jefferson because
"they couldn't talk with no sense."
Haskins testified that Jefferson and a male friend, Joe
Todd, came to his home about 25 minutes later. Haskins was
outside when they drove up. After Todd and Jefferson got out of
the car, Jefferson and Haskins began to argue. Haskins asked
Todd to take Jefferson out of his yard and threatened to call
the police. Todd pleaded with Jefferson to leave, but Jefferson
said she had visitation rights and refused to leave. Todd then
drove away.
At that point, Haskins went into his house and locked the
door. He testified that he went to a window where he could see
Jefferson and watched her through the blinds. Jefferson
continued to yell for her daughter and started smoking a
- 2 - cigarette. She then went to Haskins' car shed and went inside,
where Haskins could no longer see Jefferson. He testified that
she stayed in the shed for approximately a minute to a minute
and a half. She then exited the shed, still smoking, and used
something she had in her hand to put a dent in a car that was
sitting in Haskins' driveway. Jefferson walked away from the
house, looked back when she was 100 yards away, and disappeared
into some nearby woods. Approximately ten minutes later,
Haskins was outside and saw the shed on fire. Haskins received
approximately $11,000 from his insurer for the value of the shed
and its contents.
Jefferson testified that she did not go into the car shed
but only went to the front edge of the shed, where she could
urinate out of sight. She testified that she dropped a
cigarette butt on the ground, stepped on it just before she
urinated, and then lit another cigarette just after leaving
Haskins' property.
Special Agent Harold Adams of the Virginia State Police,
who specialized in arson investigations, investigated the shed
fire. He testified that he concluded the fire had started in
the rear portion of the shed where a hay bale was located. He
further testified that the fire could not have been started by a
cigarette butt and that he was unable to determine whether the
gasoline in the several lawn mowers that were in the shed had
started the fire or accelerated the fire.
- 3 - II. Analysis
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it. Code
§ 8-491." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). Moreover, "[i]f there is evidence to
support the conviction, an appellate court is not permitted to
substitute its own judgment for that of the finder of fact, even
if the appellate court might have reached a different
conclusion." Commonwealth v. Presley, 256 Va. 465, 466, 507
S.E.2d 72 (1998). Code § 18.2-80 provides, in pertinent part,
that "any person [who] maliciously . . . burn[s] . . . or
cause[s] to be burned or destroyed . . . any building . . . or
other structure . . . at a time when no person is in such
building, or other structure, and such building, or other
structure, with the property therein, be of the value of $200,
or more, he shall be guilty of a Class 4 felony."
To support a conviction under Code § 18.2-80, "[t]he
Commonwealth had the burden to prove beyond a reasonable doubt
both that the fire was incendiary and that the accused was the
criminal agent." Marable v. Commonwealth, 27 Va. App. 505, 510,
500 S.E.2d 233, 235 (1998). "Although fires are presumed to be
- 4 - accidental, that presumption is rebuttable." Id. See also
Knight v. Commonwealth, 225 Va. 85, 89, 300 S.E.2d 600, 601-02
(1983).
Jefferson denies that she started the fire, but in the
alternative, states that she might have accidentally started the
fire by dropping the cigarette butt. However, Agent Adams
testified that the fire began in the back of the shed, not in
the front. He also testified that the fire could not have been
started by a cigarette butt.
Furthermore, the circumstances proven by the Commonwealth
established that Jefferson was at the location of the shed,
alone and out of sight of any witness, only minutes before the
fire started. Jefferson was admittedly angry at Haskins because
he would not let her see her daughter. Jefferson displayed this
anger by intentionally denting the car just after leaving the
shed. Moreover, Jefferson admits that she was smoking just
before she went to the shed and after. Certainly it would be
reasonable for a fact finder to infer that at the time she went
to the shed, she had in her possession something which would
allow her to light the cigarette, be it a match or a lighter.
The presumption of accident, as claimed by Jefferson, was
clearly rebutted by the expert testimony of Agent Adams. "With
'the testimony of a qualified expert . . . negat[ing] every
reasonable possibility that a fire was of accidental origin,'
the fact finder was entitled to reject any conflicting evidence
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Olitsky ∗ Argued at Richmond, Virginia
PHILLYSTENE TUCKER JEFFERSON MEMORANDUM OPINION ∗∗ BY v. Record No. 2706-98-2 JUDGE ROBERT J. HUMPHREYS AUGUST 22, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Thomas V. Warren, Judge
Wade A. Jacobson for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Phillystene Tucker Jefferson appeals her conviction in a
bench trial for malicious burning of a structure in violation of
Virginia Code § 18.2-80. Jefferson claims that the trial court
erred in finding the evidence sufficient as a matter of law to
support the conviction. We disagree and for the reasons that
follow, affirm her conviction.
I. Background
Jefferson and Berkley Haskins have a fourteen-year-old
daughter but have never been married. The relationship between
∗ Retired Judge Norman Olitsky took part in the consideration of this case by designation pursuant to Code § 17.1-400, recodifying Code § 17-116.01. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.101, this opinion is not designated for publication. Jefferson and Haskins has been contentious. In particular, they
have had disagreements regarding their daughter and various
custody issues.
During the early morning hours of April 18, 1998, at
approximately 2:00 a.m., Haskins, who had custody of the
daughter by court order, telephoned Jefferson to inform her that
he had had the daughter arrested the previous day. On April 21,
1998 and April 22, 1998, Jefferson made a number of telephone
calls to Haskins' home asking to speak with the daughter.
Haskins testified that when Jefferson spoke to the daughter, the
daughter told him she didn't want to speak to Jefferson and
handed him the phone. Haskins then hung up on Jefferson because
"they couldn't talk with no sense."
Haskins testified that Jefferson and a male friend, Joe
Todd, came to his home about 25 minutes later. Haskins was
outside when they drove up. After Todd and Jefferson got out of
the car, Jefferson and Haskins began to argue. Haskins asked
Todd to take Jefferson out of his yard and threatened to call
the police. Todd pleaded with Jefferson to leave, but Jefferson
said she had visitation rights and refused to leave. Todd then
drove away.
At that point, Haskins went into his house and locked the
door. He testified that he went to a window where he could see
Jefferson and watched her through the blinds. Jefferson
continued to yell for her daughter and started smoking a
- 2 - cigarette. She then went to Haskins' car shed and went inside,
where Haskins could no longer see Jefferson. He testified that
she stayed in the shed for approximately a minute to a minute
and a half. She then exited the shed, still smoking, and used
something she had in her hand to put a dent in a car that was
sitting in Haskins' driveway. Jefferson walked away from the
house, looked back when she was 100 yards away, and disappeared
into some nearby woods. Approximately ten minutes later,
Haskins was outside and saw the shed on fire. Haskins received
approximately $11,000 from his insurer for the value of the shed
and its contents.
Jefferson testified that she did not go into the car shed
but only went to the front edge of the shed, where she could
urinate out of sight. She testified that she dropped a
cigarette butt on the ground, stepped on it just before she
urinated, and then lit another cigarette just after leaving
Haskins' property.
Special Agent Harold Adams of the Virginia State Police,
who specialized in arson investigations, investigated the shed
fire. He testified that he concluded the fire had started in
the rear portion of the shed where a hay bale was located. He
further testified that the fire could not have been started by a
cigarette butt and that he was unable to determine whether the
gasoline in the several lawn mowers that were in the shed had
started the fire or accelerated the fire.
- 3 - II. Analysis
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it. Code
§ 8-491." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). Moreover, "[i]f there is evidence to
support the conviction, an appellate court is not permitted to
substitute its own judgment for that of the finder of fact, even
if the appellate court might have reached a different
conclusion." Commonwealth v. Presley, 256 Va. 465, 466, 507
S.E.2d 72 (1998). Code § 18.2-80 provides, in pertinent part,
that "any person [who] maliciously . . . burn[s] . . . or
cause[s] to be burned or destroyed . . . any building . . . or
other structure . . . at a time when no person is in such
building, or other structure, and such building, or other
structure, with the property therein, be of the value of $200,
or more, he shall be guilty of a Class 4 felony."
To support a conviction under Code § 18.2-80, "[t]he
Commonwealth had the burden to prove beyond a reasonable doubt
both that the fire was incendiary and that the accused was the
criminal agent." Marable v. Commonwealth, 27 Va. App. 505, 510,
500 S.E.2d 233, 235 (1998). "Although fires are presumed to be
- 4 - accidental, that presumption is rebuttable." Id. See also
Knight v. Commonwealth, 225 Va. 85, 89, 300 S.E.2d 600, 601-02
(1983).
Jefferson denies that she started the fire, but in the
alternative, states that she might have accidentally started the
fire by dropping the cigarette butt. However, Agent Adams
testified that the fire began in the back of the shed, not in
the front. He also testified that the fire could not have been
started by a cigarette butt.
Furthermore, the circumstances proven by the Commonwealth
established that Jefferson was at the location of the shed,
alone and out of sight of any witness, only minutes before the
fire started. Jefferson was admittedly angry at Haskins because
he would not let her see her daughter. Jefferson displayed this
anger by intentionally denting the car just after leaving the
shed. Moreover, Jefferson admits that she was smoking just
before she went to the shed and after. Certainly it would be
reasonable for a fact finder to infer that at the time she went
to the shed, she had in her possession something which would
allow her to light the cigarette, be it a match or a lighter.
The presumption of accident, as claimed by Jefferson, was
clearly rebutted by the expert testimony of Agent Adams. "With
'the testimony of a qualified expert . . . negat[ing] every
reasonable possibility that a fire was of accidental origin,'
the fact finder was entitled to reject any conflicting evidence
- 5 - relative to accidental cause." Marable, 27 Va. App. at 510, 500
S.E.2d at 236. "Whether the origin of a fire was accidental or
incendiary is a question of fact, and resolution of that
question may, and often must, turn upon the weight of
circumstantial evidence." Knight, 225 Va. at 89, 300 S.E.2d at
602.
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt. [T]he Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant. Whether a
hypothesis of innocence is reasonable is a question of fact."
Marable, 27 Va. App. at 510, 500 S.E.2d at 235 (1998) (citations
omitted). Further, it is well settled that "[t]he credibility
of a witness and the inferences to be drawn from proven facts
are matters solely for the fact finder's determination. In its
role of judging witness credibility, the fact finder is entitled
to disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt." Id.
at 509-10, 500 S.E.2d at 235 (citations omitted).
Considering the evidence in the light we must, we hold that
it was sufficient to prove beyond a reasonable doubt that the
- 6 - fire was incendiary in nature and that Jefferson was the
criminal agent.
Affirmed.
- 7 -