                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia


CAROLYN D. BRANDT
                                                               MEMORANDUM OPINION* BY
v.      Record No. 2342-04-2                                   JUDGE SAM W. COLEMAN III
                                                                      MAY 2, 2006
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                    Gary A. Hicks, Judge

                  David B. Hargett (Hargett & Watson, PLC, on brief), for appellant.

                  Michael T. Judge, Assistant Attorney General (Judith Williams Jagdmann,
                  Attorney General, on brief), for appellee.


                                          LEGAL HISTORY

        On the evening of May 21, 2003, Ronnie Brandt died of smoke inhalation from a fire in

his mobile home on Brook Road in Henrico County. His wife, Carolyn Brandt (Brandt), the

appellant, was indicted and convicted of arson and first-degree murder in connection with the

fire.

        The principal issue on appeal is whether the trial court properly admitted into evidence

the results of a fire investigator’s experiment that he conducted after the fire. The experiment

consisted of the investigator placing a lit cigarette on each of twenty separate piles of clothing to

determine the likelihood of a fire starting in that manner. The appellant contends that because

the “lit cigarette” experiment was not conducted under conditions substantially similar to those

in which the actual fire occurred and because the results of the test were not shown to have been


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
scientifically reliable, the trial judge erred by admitting the evidence. Assuming without

deciding that the trial judge erred by admitting evidence of the results of the experiment, the

incriminating evidence against Carolyn Brandt was so overwhelming in proving her guilt that

any error in the admission of the experimental evidence was harmless.

                                 FIRE INVESTIGATOR’S EVIDENCE

       When firemen arrived at the Brandts’ burning mobile home, they located Ronnie

Brandt’s body just inside the home’s back door. The fire investigator arrived as the firemen

were extinguishing the fire. After examining the scene, the investigator determined the fire had

begun near some burnt clothing on the living room floor. In an effort to determine whether the

fire had been accidentally or intentionally set, the investigator examined and excluded certain

possible accidental causes, such as electrical malfunctions, home heating sources, and lightning

strikes. Also, he found no evidence of accelerants having been used to set or accelerate a fire.

He also considered whether Ronnie Brandt, a known smoker, might have accidentally caused the

fire by dropping a lit cigarette on clothing. The investigator searched for, but did not find, any

evidence of cigarettes, cigarette butts, cigarette lighters, or remnants of smoking material in the

area near the fire’s source. To further determine the likelihood that a dropped lit cigarette may

have caused the fire, the investigator conducted an experiment to determine the probability or

improbability that a lit cigarette dropped on piles of clothes would cause them to ignite. The

results of his experiment caused one of the twenty piles of clothes to ignite after smoldering for

fifty-three minutes.

       At trial, Carolyn Brandt’s attorney conceded that the fire investigator was qualified as an

expert to investigate and determine the causes of fires. However, over defense counsel’s

objection, the investigator testified about the experiment he conducted and the results of his

having placed a lit cigarette on each of twenty separate piles of clothes. He explained that the

                                                -2-
clothes consisted of “socks, pants, shirts, jackets, all material types, including nylon, rayon,

cotton, polyester.” He did not specify whether each pile of clothes contained only a particular

type of fabric or whether the lit cigarettes were placed on different types of fabric.

                                       HARMLESS ERROR

       We adhere to “the sound judicial practice of refusing to decide or address issues whose

resolution is not necessary to dispose of a case, unless there are compelling reasons to do

otherwise.” United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988). See also Milton v.

Wainwright, 407 U.S. 371, 372 (1972) (“the judgment under review must be affirmed without

reaching the merits of petitioner’s present claim. Assuming, arguendo, that the challenged

testimony should have been excluded, the record clearly reveals that any error in its admission

was harmless beyond a reasonable doubt.”); Pitt v. Commonwealth, 260 Va. 692, 695, 539

S.E.2d 77, 79 (2000) (assuming without deciding that the trial court erred in admitting

codefendant’s statements because it violated the defendant’s right to cross-examination, held that

error was harmless beyond a reasonable doubt); Jenkins v. Commonwealth, 244 Va. 445, 454,

423 S.E.2d 360, 366 (1992) (assuming arguendo that admission of defendant’s confession was

error, such error was harmless beyond a reasonable doubt). The fire investigator’s opinion that

the fire was of “incendiary” origin was admitted without objection. However, the test results did

not prove that the fire could not have been started accidentally, supporting appellant’s theory of

the case; in fact, the investigator testified he could not rule out that possibility. Thus, any

potential prejudicial effect that the evidence had on the jury’s verdict was minimal.1 Here, the



       1
         This case is distinguishable from those in which the Commonwealth’s evidence is of a
“generalized nature” and the effect of improperly admitted evidence undermines confidence in
the jury’s verdict. For example, in Williams v. Commonwealth, 32 Va. App. 395, 528 S.E.2d
166 (2000) (en banc), we reversed appellant’s conviction because the “prejudicial impact of
Harris’ confession clearly was significant and undermines confidence in the verdict. In view of
the generalized nature of the other testimony, we cannot conclude ‘beyond a reasonable doubt
                                               -3-
test results could not have affected the jury’s verdict because they supported appellant’s

hypothesis of innocence. In addition, the Commonwealth presented very specific testimony from

many witnesses to establish appellant’s guilt beyond a reasonable doubt. Thus, we can say,

“without usurping the jury’s fact finding function,” the test results were inconsequential in light

of the overwhelming evidence of guilt. Lavinder v. Commonwealth, 12 Va. App. 1003, 1006,

407 S.E.2d 910, 911 (1991).

       Code § 8.01-678 provides that:

               When it plainly appears from the record and the evidence given at
               the trial that the parties have had a fair trial on the merits and
               substantial justice has been reached, no judgment shall be arrested
               or reversed . . . for any . . . defect, imperfection, or omission in the
               record, or for any error committed on the trial.

       When an error has been alleged in a criminal case, to determine whether substantial

justice has been reached, “‘a reviewing court must decide whether the alleged error substantially

influenced the jury. If it did not, the error is harmless.’” Rose v. Commonwealth, 270 Va. 3, 12,

613 S.E.2d 454, 458 (2005) (quoting Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728,

731 (2001)). If an error did not influence the jury, the conviction should stand. “But if one

cannot say, with fair assurance, after pondering all that happened without stripping the erroneous

action from the whole, that the judgment was not substantially swayed by the error, it is

impossible to conclude that substantial rights were not affected.” Rose, 270 Va. at 15, 613

S.E.2d at 458-59 (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). An error is

harmless when the evidence of guilt is “overwhelming” such that the error “failed to have any

‘substantial influence’ on the verdict.” United States v. Lane, 474 U.S. 438, 450 (1986) (quoting




that the [improperly admitted confession] did not contribute to the verdict obtained.’” Id. at 406,
528 S.E.2d at 172 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
                                               -4-
Kotteakos, 328 U.S. at 765); see Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (adopting Kotteakos

harmless error standard).

       Harmless error analysis is not a matter of reviewing the evidence and determining if it is

sufficient to sustain a conviction:

               [I]n determining if an error is harmless, a reviewing court does not
               decide the probability of the occurrence of a past event, i.e. if, in
               fact, the defendant committed the crime charged. It determines,
               instead, whether, as a matter of law, this decision by the fact finder
               was affected by the error. If so, the error is not harmless; if not,
               the error is harmless.

Lavinder, 12 Va. App. at 1006, 407 S.E.2d at 911.

       Where a trial court has committed error and a defendant has been found guilty, harmless

error applies only if the evidence of guilt is so overwhelming as to render any error

inconsequential in the jury’s finding of guilt. See Hanson v. Commonwealth 14 Va. App. 173,

191, 416 S.E.2d 14, 32 (1992) (“[W]hile they should have been excluded, [certain statements]

were inconsequential in light of the evidence which overwhelmingly points to [the defendant] as

[a] murderer.”). Moreover, “[e]rror will be presumed prejudicial unless it plainly appears that it

could not have affected the result.” Joyner v. Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555,

558 (1951). If the trial court has committed an error:

               [A] criminal conviction must be reversed unless “it plainly appears
               from the record and the evidence given at the trial that” the error
               did not affect the verdict. An error does not affect a verdict if a
               reviewing court can conclude, without usurping the jury’s fact
               finding function, that, had the error not occurred, the verdict would
               have been the same.

Lavinder, 12 Va. App. at 1006, 407 S.E.2d at 911 (quoting Code § 8.01-678).

       Here, both the direct and circumstantial evidence overwhelmingly prove that Carolyn

Brandt intentionally set fire to her mobile home and that she did so intending to kill her husband.




                                                -5-
       First, and most significantly, are Brandt’s express admissions that she set the fire to

collect the fire and life insurance and to rid herself of Ronnie Brandt. Brandt’s daughter testified

that on the night of the fire her mother admitted to starting the fire to collect on the homeowner’s

insurance because the owner was closing the trailer park. Several witnesses also testified to

having heard Carolyn Brandt expressly admit to having set the fire to collect the insurance and to

kill her husband. The daughter also testified that her mother told her that, before the fire, she had

put some photographs in a drawer where they would be safe and after the fire she asked the

daughter to retrieve them. Thus, Brandt’s express and tacit admissions that she set the fire were

corroborated by several witnesses, as well as other surrounding circumstances.

       Additionally, the circumstantial evidence proved that Carolyn Brandt not only had, but

communicated to others, her motive and desire for burning her mobile home and for killing her

husband. Proof of motive is always a fact and circumstance that may be introduced to prove that

an accused committed the charged offense. Here, numerous witnesses testified that Carolyn

Brandt told them she wanted her husband dead and had talked about what methods she might use

to kill him. For example, she told her son how she could “kill somebody and get away with it.”

Carolyn Brandt’s daughter-in-law stated that Brandt mentioned that she hoped the police did not

test her shoes for gasoline, which she said she used “to make the fire burn quicker.” Several

witnesses, including Brandt’s daughter, son-in-law, and a neighbor, testified she told them she

needed money and that she had insurance on the mobile home and life insurance on Ronnie that

she was going to collect. A witness testified that Carolyn Brandt’s daughter called her two

weeks after the fire to ask about insurance money, and clearly wanted the money. Additionally,

after the fire, the investigators found romantic letters written to Carolyn Brandt from a prison

inmate. A witness testified that she heard Brandt say, “when he [the inmate] got out of prison,

he’s coming to live with her and that if Ronnie didn’t like it, he could leave.” Thus, the evidence

                                                -6-
proved that Carolyn Brandt had financial, personal, and romantic motives and reasons for

burning her mobile home and killing her husband. Moreover, not only did one witness testify to

Brandt’s professed motives but several witnesses corroborated Brandt’s admissions as to her

motives and reasons for setting the fire.

       The circumstances surrounding how Ronnie Brandt died and the cause of death strongly

support the conclusion that Carolyn Brandt administered to Ronnie an overdose of his prescribed

anti-depressant, which caused drowsiness, in order to render him helpless before setting the

mobile home afire. While Carolyn Brandt argues the circumstantial evidence equally supports

the conclusion that Ronnie Brandt took a self-administered overdose before the fire and

accidentally dropped a cigarette on some combustible item, unrefuted facts proved otherwise.

The toxicologist testified that the victim had lethal amounts of venlafaxine in his system and that

his stomach contained “crushed” fragments of the drug. Brandt’s son-in-law testified that two or

three days before the fire, Carolyn Brandt gave him a mortar and pestle and told him to “get rid

of it” because “it had criminal evidence in it.” Another witness who had been in the Brandts’

mobile home the day before the fire testified that Carolyn Brandt gave Ronnie some food and

urged him to eat it. When Ronnie refused the food and the witness asked for it, Carolyn replied

“you don’t want none.” Two prescription bottles for venlafaxine HCL, one filled on March 18,

2003 and one the next day on March 19, 2003, were found in a bag in Carolyn Brandt’s car. One

of the bottles was empty. During the investigation Carolyn Brandt called an investigator in the

case to ask for her medication back. Two witnesses testified to having observed Carolyn Brandt,

a month before the fatal fire, put the contents of several pills in her husband’s coffee or tea and

serve it to him. Although Ronnie Brandt died of carbon monoxide poisoning, the toxicologist

testified that the level of venlafaxine in his system could have been fatal if his body had more

time to have absorbed it. This circumstantial evidence that Carolyn Brandt had the opportunity

                                                -7-
to and had attempted to administer a disabling, if not fatal, dose of an anti-depressant drug to

Ronnie Brandt before setting the mobile home afire, further corroborates the several witnesses to

whom Brandt admitted setting the fire.

       Additionally, the timing of when the fire broke out in relation to when Carolyn Brandt

left her mobile home and arrived next door to her daughter’s mobile home, together with

Carolyn’s reaction to hearing that her mobile home was on fire, are very incriminating

circumstances. Brandt’s daughter testified that approximately thirty minutes before the fire

broke out she spoke with Ronnie by telephone and he sounded as if he had been asleep. When

Carolyn Brandt came to her daughter’s mobile home moments later, Carolyn announced in an

unconcerned voice that her mobile home was on fire. About twenty minutes later a neighbor

called to tell Carolyn about the fire, during which conversation Carolyn said, “Ronnie is in the

house.” After hanging up, Carolyn said, “why couldn’t them people mind their own fucking

business.” When another neighbor called to report the fire to Carolyn, she simply responded,

“Oh.” Also, a friend of Brandt’s daughter testified that later that night Brandt said, “If

everybody keeps their fucking mouth shut, I won’t get caught.” Brandt’s son-in-law also

testified to having heard her make these remarks. Here, several witnesses testified to and

corroborated Brandt’s tacit admissions and Brandt’s indifference and lack of concern to the fact

that her home was burning with her husband inside. These additional well-corroborated facts

merely add to the already overwhelming amount of incriminating evidence.

       At trial, Carolyn Brandt denied she set the fire. She also denied making some of the

incriminating statements to her daughter and neighbors. In an effort to show that the fire might

have been accidental, witnesses testified that the living room of the trailer had paper, tissues,

mail, newspapers, and other trash all over the floor. On different occasions, witnesses saw

Ronnie Brandt fall asleep with a cigarette in his hand or his mouth, which would fall and burn

                                                -8-
something or somebody and wake him up. One witness said it happened “[t]oo many times” that

a cigarette would drop from his mouth while he slept. Brandt presented evidence concerning

Ronnie Brandt’s multiple medical problems, his taking numerous medications, that he suffered

from depression, and had suicidal thoughts.

          Despite Carolyn Brandt’s evidence, the evidence proving her guilt is substantial and

overwhelming: witnesses testified to statements she made before the fire concerning her desire

to kill her husband and her need for insurance money; during the night of the fire she showed

indifference to the fact that her trailer was burning down with her husband inside; after the fire,

she admitted she started the fire to kill her husband and collect the insurance money from his

death and the destruction of her trailer; Carolyn Brandt said she would not get caught if the

neighbors would keep their “fucking mouths shut”; the fire investigator concluded that neither

electrical appliances nor lightning caused the fire; Carolyn Brandt was corresponding with a

convict and expressed a desire to live with him upon his release; in addition, in the months

before the fire, Carolyn Brandt emptied the contents of pills into her husband’s drinks on

multiple occasions; the two most recent prescription bottles of venlafaxine, which were filled

only two days apart, were found in her car after the fire; the fire broke out only a short time after

she arrived at her daughter’s mobile home from her home; and the toxicology expert testified

that Ronnie Brandt had lethal amounts of venlafaxine in his bloodstream when he died.

                                           CONCLUSION

          We conclude that the evidence of guilt is overwhelming and any error of admitting the lit

cigarette experiment results was harmless beyond a reasonable doubt. For these reasons, we

affirm.

                                                                                      Affirmed.




                                                 -9-
Benton, J., dissenting.

       I would hold that the admission of the evidence concerning the fire investigator’s

experiment was error. I also dissent from the majority’s conclusion that the error was harmless.

I would hold that the error was not harmless and, therefore, would reverse the convictions and

remand for a new trial.

                                                 I.

       “On appeal, we will reverse a trial court’s decision to admit expert testimony if the court

abused its discretion in doing so.” Norfolk S. Ry. Co. v. Rogers, 270 Va. 468, 479, 621 S.E.2d

59, 65 (2005). Furthermore, the trial judge has no discretion to permit the jury to consider

evidence that is inadmissible. See CSX Transp., Inc. v. Casale, 250 Va. 359, 367, 463 S.E.2d

445, 450 (1995). This is so “because ‘admissibility of evidence depends not upon the discretion

of the court but upon sound legal principles.’” Gray v. Rhoads, 268 Va. 81, 86, 597 S.E.2d 93,

96 (2004) (citation omitted).

       It is a basic legal principle that “the admission of expert testimony is subject to certain

fundamental requirements, including the requirement that the evidence be based on an adequate

foundation.” Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d 645, 647 (2000). Thus, “expert

testimony is inadmissible if it is founded on assumptions that have an insufficient factual basis.”

Id. at 161, 524 S.E.2d at 648; see also Norfolk S. Ry., 270 Va. at 479, 621 S.E.2d at 65 (holding

that “whether [an] expert opinion was supported by an adequate factual foundation concerns the

admissibility of evidence”).

       Applying a similar legal principle, the Supreme Court has held that “[r]esults of

experiments are not admissible into evidence unless the tests were conducted under conditions

which were the same or substantially similar in essential particulars to those existing at the time

of the accident.” Thorpe v. Commonwealth, 223 Va. 609, 613, 292 S.E.2d 323, 326 (1982). The

                                               - 10 -
purpose of the “substantially similar” test is to give some degree of assurance that the jury, as

fact finder, can reasonably conclude that a meaningful comparison exists between the experiment

results and the situation to which the results are compared. The failure of the proponent of the

evidence to show that the conditions of the tests replicate, in the same or a substantially similar

manner, the conditions existing at the time of the event at issue is a “fail[ure] to lay a proper

foundation for [the] expert’s testimony.” Runyon v. Geldner, 237 Va. 460, 464, 377 S.E.2d 456,

459 (1989).

        In addition, when the expert’s testimony establishes “[t]here were certain variables which

he did not consider in arriving at his opinion,” the trial judge must reject the experiment

testimony. Grasty v. Tanner, 206 Va. 723, 727, 146 S.E.2d 252, 255 (1966). The jury, as the

trier of fact, is entitled to know that the expert “consider[ed] all the variables bearing on the

inferences to be drawn from the physical facts.” Id.

        The fire investigator testified that he examined the mobile home after the fire and

excluded certain possible accidental causes, such as electrical malfunctions, home heating

sources, and lightning strikes. Over the objection of Brandt’s attorney, the trial judge permitted

the fire investigator to testify about an experiment he conducted to determine whether a dropped

cigarette started the fire.

        In his testimony to the jury, the investigator described an experiment he conducted at his

home and the results of placing a lit cigarette on each of twenty separate piles of clothes. The

investigator testified that the tests were conducted in 38% humidity, whereas the outside

humidity on the evening of the fire was near 100%. He also indicated that higher humidity on

the night of the fire would have further impeded the fire igniting by accidental means. His

experiment did not consider, however, the probable or approximate humidity inside the mobile

home at the time of the fire.

                                                - 11 -
        The investigator explained that the clothes consisted of “socks, pants, shirts, jackets, all

material types, including nylon, rayon, cotton, polyester.” He did not specify whether each pile

of clothes contained only a particular type of fabric or if multiple types of fabric comprised each

pile. The Commonwealth did not demonstrate the relevance of the fact that the piles of clothes

in the experiment contained different types of materials, because the evidence does not explain

whether each pile contained a different type of material. No evidence showed that the clothing

the investigator chose was the same or similar to the clothing in the mobile home. Furthermore,

the evidence did not show which types of clothing and materials were at the source of the fire.

        Additionally, the evidence showed that newspapers and other paper products were

scattered on the floor of the mobile home. Although the investigator acknowledged that he saw

newspapers on the floor, he did not test those materials to determine the “probability” that they

would ignite after contact with a lit cigarette. The probable flammability of that type of material

would have been a meaningful variable in calculating the likelihood that a lit cigarette ignited

materials in the Brandt mobile home.

        The expert’s trial testimony was fundamentally flawed. The testimony that one pile in

twenty, or 5%, ignited had the illusion of precision and scientific validity, when, in fact, the

experiment was not at all precise or scientifically valid. The inspector testified that in

conducting his tests he did not attempt to replicate the humidity level that existed in the home or

account for the presence of paper. The evidence failed to prove that the types of materials used

in the experiment were substantially similar to the clothing and other material even present in the

mobile home, much less at the point of the fire’s origin. Because many of the essential

particulars were not accounted for, the jury could not logically or reasonably conclude from the

test results the probability of a lit cigarette causing the fire.




                                                  - 12 -
       In sum, the experiment did not replicate the conditions of the fire in a substantially

similar manner and did not account for significant variables relating to the fire. See Thorpe, 223

Va. at 613, 292 S.E.2d at 326 (holding as inadmissible expert evidence of an experiment

conducted under conditions not substantially similar to the conditions of the original accident);

Grasty, 206 Va. at 727, 146 S.E.2d at 255 (holding that expert testimony was inadmissible

because the expert did not consider all the variables). The experiment’s results and the

investigator’s opinion were “founded upon assumptions that [had] no basis in fact.” Vasquez v.

Mabini, 269 Va. 155, 160, 606 S.E.2d 809, 811 (2005) (holding that expert testimony founded

upon such assumptions “is not merely subject to refutation by cross-examination or by counter

experts; it is inadmissible”). Due to these deficiencies, the testimony was inadmissible. The trial

judge erred, therefore, in admitting it into evidence.

       In addition, I believe the experiment evidence was inadmissible due to its confusing

nature. Evidence must be excluded if its negative factors outweigh its probative value. Byrd v.

Commonwealth, 30 Va. App. 371, 376, 517 S.E.2d 243, 245 (1999). A factor that “weigh[s]

against the admission of relevant evidence [is] . . . the confusing nature of the evidence and the

likelihood that it will mislead the jury.” Id.

       The lit cigarette experiment was intended as a recreation of a specific prior event that

purported to yield the same result as occurred the night of the fire. Despite the considerable

deficiencies with his experiment, the investigator concluded that the test results suggested that a

dropped cigarette did not cause the fire. Indeed, he informed the jury of his conclusion that the

fire was “intentionally set.”

       The majority asserts that this evidence did not establish that the fire could not have been

caused accidentally. It is significant that the prosecutor argued in his closing statement to the

jury that the investigator’s testimony showed the fire was intentionally set. He asserted:

                                                 - 13 -
               [The fire investigator] considered the possibility of a cigarette
               accidentally starting the fire. How did he do that, ladies and
               gentlemen? First of all, he didn’t find any evidence of any sort of
               abandoned smoking materials in the area of the origin of the fire.

                       The temperature, he testified, was 57 degrees Fahrenheit.
               The humidity was 100 percent. It was moderate rain outside. That
               was important, if you remember, what Investigator Hines said.
               Igniting clothing with a cigarette in high humidity is difficult due
               to the high moisture content in the air.

                       Remember, he did 20 controlled experiments with different
               sorts of cloth material in less humid conditions. In 19 of those 20
               situations, the clothing did not catch fire. The one time the
               clothing did catch fire, it took almost an hour for the fire to start.
               An hour far exceeds any sort of time frame we have in this case. If
               you remember, our time frames appeared at 8:30 to 9:00 o’clock.

                       By conducting these tests, observing physical evidence,
               Investigator Hines concluded the fire was not likely started by a
               cigarette accident. Investigator Hines concluded the fire was most
               likely incendiary in nature, or intentionally set.

This argument demonstrates that the prosecutor’s purpose of offering such evidence was to

enable the jury to conclude there was only a 5% probability that a dropped cigarette could have

caused the fire and zero probability that one could have done so within the requisite thirty minute

window. Thus, by positing that the evidence ruled out accidental causes, the prosecutor was

asserting the fire was intentionally set.

       Masquerading as scientific evidence, the expert testimony had the tendency to confuse

and mislead the jury. Lacking the foundation necessary to render the scientific evidence reliable,

the testimony’s probative value was dramatically outweighed by its “confusing nature,” and thus

the evidence was inadmissible. See Byrd, 30 Va. App. at 376, 517 S.E.2d at 245 (holding that

certain evidence was inadmissible because it “could be misunderstood by the jury and

misapplied).

       Convictions in criminal cases cannot be based on “inadmissible speculation.” Thorpe,

223 Va. at 614, 292 S.E.2d at 326; see also Dunn v. Commonwealth, 222 Va. 704, 705-06, 284
                                               - 14 -
S.E.2d 792, 793 (1981) (holding that the “verdict could have been based only upon speculation

and conjecture and cannot be permitted to stand”). By not accounting for all of the significant

variables or the conditions at the time and place of the fire, the evidence was unreliable and

unprobative to the extent that any jury reliance on the opinion testimony could only result in

speculation. Therefore, for all of the above reasons, I would hold that the results of the

experiment and opinion testimony were inadmissible and that the trial judge erred by allowing

them into evidence.

                                                  II.

        The trial judge’s erroneous admission of the investigator’s testimony about his

experiments was so prejudicial to Carolyn Brandt that we cannot reasonably conclude that it did

not affect the verdict.

                “[I]f one cannot say, with fair assurance, after pondering all that
                happened without stripping the erroneous action from the whole,
                that the judgment was not substantially swayed by the error, it is
                impossible to conclude that substantial rights were not affected. . . .
                If so, or if one is left in grave doubt, the conviction cannot stand.”

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946)). The United States Supreme Court has held that

“the principle of Kotteakos [means] that when an error’s natural effect is to prejudice substantial

rights and the court is in grave doubt about the harmlessness of that error, the error must be

treated as if it had a ‘substantial and injurious effect’ on the verdict.” O’Neal v. McAninch, 513

U.S. 432, 444 (1995). “The inquiry cannot be merely whether there was enough to support the

result, apart from the phase affected by the error. It is rather, even so, whether the error itself

had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”

Kotteakos, 328 U.S. at 765.




                                                - 15 -
        Brandt’s husband died of carbon monoxide poisoning. Carbon monoxide is a toxic gas

by-product of the incomplete burning of various objects. The evidence proved that his body was

found in his mobile home residence, which was “very heavily involved in fire.”

        The Commonwealth’s evidence in this case concerning the cause of the fire was purely

circumstantial. The erroneously admitted testimony from the fire investigator bore directly on

this issue of causation. Reversing a conviction in a case where expert testimony improperly

eliminated an accidental cause of death, the Supreme Court held that “an opinion of a witness the

judge has found to be an expert carries great weight with laymen . . . .” Bond v. Commonwealth,

226 Va. 534, 538, 311 S.E.2d 769, 772 (1984). When an “expert’s opinion . . . may have been

the decisive, if not the exclusive, factor in the jury’s finding that death was the result of criminal

conduct,” the error is not harmless. Id. at 539-40, 311 S.E.2d at 772.

        The majority suggests that allowing the fire investigator’s testimony about his

experiments was harmless error because the jury could have only interpreted the evidence as

presenting one theory of events beyond a reasonable doubt: Brandt drugged her husband

unconscious and set fire to their home in order to kill him. As support, the majority relies on the

evidence of the drug venlafaxine in Brandt’s husband’s system, Brandt’s correspondence with an

inmate, and witnesses’ testimony regarding Brandt’s reactions to events and her statements about

her husband and his death. At trial, Brandt challenged this interpretation of the evidence by

presenting an alternative theory to the jury: Brandt’s husband, suffering from depression and

suicidal thoughts, ingested the venlafaxine intentionally, and he accidentally started the fire when

he lost consciousness and dropped his lit cigarette. Brandt also denied making the statements

attributed to her by the Commonwealth’s witnesses, squarely raising issues of witness credibility

for the jury to resolve.




                                                - 16 -
        This Court previously held that error was not harmless when the “[e]vidence presented at

trial was circumstantial and the Commonwealth’s case rested to a large extent on the credibility

of witnesses.” Conway v. Commonwealth, 12 Va. App. 711, 716-17, 407 S.E.2d 310, 313

(1991); see also Abunaaj v. Commonwealth, 28 Va. App. 47, 55-56, 502 S.E.2d 135, 139 (1998).

That principle is applicable in this case. When the erroneously admitted expert testimony is

excluded, the Commonwealth’s evidence concerning the fire’s causation consists, in large

measure, of testimony by witnesses relating inculpatory statements attributed to Brandt. Brandt

testified and denied making each of those statements. Thus, the resolution of this circumstantial

case turned on the jury’s assessment of these witnesses’ credibility. For example, a witness

testified that Brandt talked about using gasoline to make a fire burn faster. Brandt denied

making such a statement. The Commonwealth’s witnesses, the fire investigators, testified that

they found no evidence that accelerants were used to cause the fire, tending to support Brandt’s

testimony in this instance. A fire investigator also testified that the residence was an old trailer

that is more susceptible to burning.

        The erroneously admitted evidence was offered to permit the jury to conclude that

scientific experiments established that a dropped cigarette was unlikely to have caused the fire.

This erroneously admitted testimony by an expert adversely impacted the jury’s consideration of

Brandt’s testimony and other evidence suggesting that Brandt’s husband accidentally caused the

fire.

        The evidence proved without contradiction that Brandt’s husband was a “chronic” and

“heavy smoker.” Several witnesses testified that he often fell asleep on the sofa while smoking.

One witness testified that his cigarette “would fall or someone would wake him” to avoid a

cigarette burn and that on other occasions his falling cigarette would “burn something up.” A

witness testified that she had barred Brandt’s husband from smoking in her house “because he

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caught [her] bed on fire twice.” Another testified she had forbidden Brandt’s husband to smoke

in her house because “he got kind of drowsy” when smoking.

        Brandt’s husband was taking a variety of prescription drugs, including Effexor, which the

Commonwealth’s expert testified is “the same thing as venlafaxine” and can cause sleepiness

and seizures. Indeed, Brandt’s husband had told his doctor he was “too sedated with Effexor” in

the daytime, “only sleeping approximately 2 hours per night,” and having seizures. Two months

before the fire, the doctor reported that Brandt’s husband “gets very confused when he wakes up

from his loss of consciousness,” and he noted Brandt’s husband had experienced a loss of control

of bodily functions and a marked loss of weight. One month before the fire, the doctor reported

that Brandt’s husband had “worsening anxiety,” was receiving treatment for seizures, was having

blood glucose levels in excess of 300, and “likely will have elevation of worsening anxiety after

cath[erization],” which had been prescribed for his abnormal cardiac condition. Simply put,

Brandt’s husband’s condition was deteriorating in the weeks prior to the fire and his risk of

losing consciousness was increasing due to hyperglycemia and increased stress.

        This undisputed medical evidence tends to establish that Brandt’s husband, a chronic and

heavy smoker, was at great risk of losing consciousness while smoking, having anxiety attacks,

and waking from his sleep in a state of confusion. Yet, the jury could have discounted these

circumstances as a cause of the fire because of the improperly admitted evidence. Indeed, during

closing argument to the jury, the prosecutor recounted the experiments the fire investigator

conducted, and the prosecutor said, “By conducting these tests [and] observing physical

evidence, [the] Investigator . . . concluded the fire was not likely started by a cigarette accident

. . . [and also] concluded the fire was most likely . . . intentionally set.” In the absence of this

erroneously admitted “scientific” evidence the jury likely would have given greater weight to the

evidence that tended to show that Brandt’s husband’s cigarette was the cause of the fire.

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       The evidence established that Brandt’s husband had a potentially fatal amount of the drug

venlafaxine in his system at the time of his death. His stomach contained the equivalent of three

to five venlafaxine pills, and his blood contained the estimated equivalent of thirty to thirty-five

of the pills. The majority opinion suggests the jury could conclude Brandt was the cause of the

fire because she may have been the source of the venlafaxine in her husband’s system. However,

the circumstantial evidence also suggested the alternative that Brandt’s husband intentionally

ingested the venlafaxine.

       Brandt’s husband suffered from a complex medical condition. The doctor testified that

Brandt’s husband suffered from “Depression, Diabetes, Hypertension, Knee pain, Coronary

artery disease . . . major depressive disorder. Alcohol abuse.” Brandt’s husband took

twenty-five to thirty different kinds of medication each night. Brandt’s husband’s doctor had

prescribed 225 milligrams of venlafaxine, three 75 milligram capsules, per day for his

depression. One of the Commonwealth’s expert witnesses expressed some concern about the

discrepancy between the high level of venlafaxine in Brandt’s husband’s blood and the relatively

small amount in his stomach. She testified, however, that he could have inhaled or snorted the

venlafaxine in powder form, explaining “people do that.” This testimony is consistent with the

testimony of Brandt’s husband’s doctor who said that Brandt’s husband had revealed to him that

“he would now and then think about suicide.” He explained that Brandt’s husband had reported

seizures, hallucinations, and an occasional loss of consciousness. This doctor’s report also

disclosed that these events coincided with Brandt’s husband having “episodic thoughts of

wanting to be dead.”

       We cannot say with any confidence that the jury believed Brandt was the cause of the

venlafaxine in her husband’s stomach (approximately the dosage prescribed for one day) or the

unusual amount in his blood, which he could have ingested in a suicide attempt. The erroneously

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admitted evidence tended to suggest to the jury, however, that the evidence of Brandt’s

husband’s illness was irrelevant because even if he lost consciousness and dropped his cigarette

that event could not have caused the fire. As the majority notes, the test for harmless error in this

case is not whether the evidence was sufficient to prove the defendant’s guilt. The question this

Court must ask is whether we can “say, with fair assurance, . . . that the judgment was not

substantially swayed by the error.” Clay, 262 Va. at 260, 546 S.E.2d at 731-32. The trial judge

erroneously allowed expert testimony on the likely cause of the fire, which, in turn, impacted the

critical issue of witness credibility. I do not believe that we can say with confidence that the

improper evidence did not substantially affect the jury’s decision.

       For these reasons, I would reverse the arson and murder convictions and remand for a

new trial.




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