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                 COURT OF APPEALS OF VIRGINIA






Present:  Judges Coleman, Bumgardner and Lemons

Argued at Salem, Virginia





ROBERT WAYNE HICKSON, JR.

                                                                                                                                               MEMORANDUM OPINION BY

v.           Record No. 2482-97-3      JUDGE DONALD W. LEMONS

                    NOVEMBER 17, 1998

COMMONWEALTH OF VIRGINIA





          FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY

                     Ray W. Grubbs, Judge



         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.  

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